Cases Concerning the Convention for the Conservation of Southern Bluefin Tuna

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CASES CONCERNING THE CONVENTION FOR THE CONSERVATION OF SOUTHERN BLUEFIN TUNA

GOVERNMENT OF JAPAN

MEMORIAL ON JURISDICTION

OUTLINE

Paragraph No.

PART ONE INTRODUCTORY MATTERS...... 1-14

I INTRODUCTION...... 1-8

II JAPAN’S PARTICIPATION IN THE PRESENT PROCEEDINGS...... 9

III EARLIER CONSIDERATION OF THE MATTER BY THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA ...... 10-14

PART TWO THE FACTS...... 15-98

IV CATCHING SBT AND EARLY EFFORTS AT CATCH LIMITATION..... 17-19

V THE ADOPTION OF UNCLOS, 1982, AND OF CCSBT, 1993 ...... 20-36

A. UNCLOS, 1982 ...... 22-28

B. CCSBT, 1993...... 29-36

VI THE CCSBT DISPUTE SETTLEMENT PROVISIONS AND THEIR PREPARATORY WORK ...... 37-48

VII CCSBT AS THE SOLE FRAMEWORK WITHIN WHICH AUSTRALIA, JAPAN AND NEW ZEALAND HAVE SINCE 1993 EXCLUSIVELY DEALT WITH SBT AS SHOWN IN ACTIVITY IN THE COMMISSION, DIPLOMATIC CORRESPONDENCE AND OTHER CONDUCT OF THE PARTIES ...... 49-96

A. Activity in and of the Commission, 1994-1997 ...... 50-59

B. Diplomatic Correspondence and Related Matters, February-October 1998 ...... 60-76

(1) Message from the Australian Energy and Resources Minister, 25 February 1998...... 60

(2) Reply from the Japanese Minister of Agriculture, Forestry and Fisheries, 30 March 1998...... 61

(3) Further exchanges, May-August 1998...... 62-67

(4) A/NZ notes and announcements, 31 August- 1 September 1998...... 68-71

(5) Japan’s reply, 9 September 1998...... 72

(6) A/NZ notes, 10 and 11 September and NZ Aide Memoire, 1 October 1998 ...... 73-76

C. Discussions Within and Connected to the Commission of the CCSBT, December 1998-May 1999...... 77-85

(1) Negotiations under Article 16(1) of the CCSBT, December 1998 ...... 77

(2) The EFP Working Group, February-May 1999 ...... 78-81

(3) Informal bilateral Meeting between Australia and Japan, April-May 1999...... 82

(4) Fifth Annual Meeting of the Commission, May 1999 ...... 83-85

D. Commencement of the EFP, 1 June 1999 ...... 86

E. Renewed Exchanges, June-July 1999 ...... 87-93

(1) A/NZ protests, 7 and 8 June 1999 ...... 87

(2) Japanese responses, 15 and 16 June 1999...... 88

(3) A/NZ notes, 23 and 24 June 1999 ...... 89

(4) Japan’s mediation proposal and A/NZ reply, June 1999...... 90

(5) Japan’s notes of 2, 9 and 14 July 1999...... 91-93

F. The Commencement of Arbitration Proceedings under UNCLOS by A/NZ, 15 July 1999 ...... 94-96

VIII ABSENCE OF PROCEEDINGS AGAINST INDONESIA AND THE REPUBLIC OF KOREA...... 97

IX CONCLUSION OF THIS PART...... 98

PART THREE GROUNDS OF CHALLENGE TO THE JURISDICTION ...... 99-181

X INTRODUCTION—THE DISPUTE ARISES FROM THE CCSBT AND CANNOT PROPERLY BE REFASHIONED AS A DISPUTE THAT ARISES FROM THE UNCLOS...... 99-115

A. The True Character of the Dispute...... 99-109

B. Jurisdictional Identification of the Real Dispute ...... 110-115

XI THE CCSBT IS A LEX SPECIALIS ...... 116-131

A. The Relationship of CCSBT and UNCLOS...... 116-120

B. Lex Specialis in International Law...... 121-126

C. Lex Specialis and Successive Treaties ...... 127-131

XII THE CCSBT STIPULATES THE DISPUTE SETTLEMENT PROCEDURE THAT ITS PARTIES MUST FOLLOW...... 132-169

A. The CCSBT Provisions ...... 132-136

B. The CCSBT Dispute Settlement Provisions as One of Many Examples of Post-UNCLOS Treaties Not Adopting UNCLOS Procedures ...... 137-145

C. UNCLOS Part XV Does Not Permit the Submission of the Present Dispute to an Annex VII Tribunal...... 146-156

D. There Is No Genuine Dispute under UNCLOS ...... 157-169

XIII THIS TRIBUNAL HAS NO JURISDICTION OVER DISPUTES THAT CONCERN ONLY CUSTOMARY INTERNATIONAL LAW WITHOUT REFERENCE TO UNCLOS...... 170

XIV THE MATERIAL ISSUE OF THE DISPUTE DOES NOT CONCERN LEGAL RIGHTS OR DUTIES UNDER UNCLOS OR EVEN UNDER THE CCSBT—THIS TRIBUNAL CANNOT APPROPRIATELY BE SUBSTITUTED FOR THE CCSBT MECHANISMS ...... 171-181

SUBMISSION ...... 182

iii

MEMORIAL ON JURISDICTION

PART ONE INTRODUCTORY MATTERS

I INTRODUCTION

1. This Memorial on Jurisdiction sets out Japan’s contentions that the present

Tribunal has no jurisdiction to entertain the proceedings against Japan commenced by

Australia and New Zealand separately by Statements of Claim dated 15 July 1999.

(When referred to together, Australia and New Zealand will hereinafter be referred to

as “A/NZ”). A/NZ have invoked the jurisdiction of the Tribunal under Article 286 of

the United Nations Convention on the Law of the Sea, 1982 (hereinafter referred to as

“UNCLOS”).1

2. The dispute to which A/NZ claim that the proceedings relate is connected with the

fishing activities of the three States for a species of tuna called “southern bluefin tuna”

(“SBT”). A/NZ assert in their Statements of Claim that the conduct of Japan violates

three categories of legal obligation: UNCLOS (in particular Articles 64 and 116-119);

the terms of the Convention for the Conservation of Southern Bluefin Tuna, 1993

(“CCSBT”)2; and general international law. The central point in the claim is that

Japan’s commencement of an experimental fishing programme (“EFP”) without the

1 The procedural documents prior to the ITLOS decision (see paras. 10-14 below) will be found in the Dossier of those proceedings. Australia and New Zealand each began proceedings against Japan by separate Notifications and Statements of Claim under UNCLOS, Annex VII, Article 1. By an Order of the President of ITLOS of 16 August 1999, the proceedings for provisional measures on these two requests were joined. As the competence of ITLOS does not extend beyond making an order prescribing provisional measures pending the constitution of the present Tribunal, it would appear that the order for joinder of the two cases is now exhausted and that, therefore, an act of the present Tribunal is required to effect the joinder of these arbitral proceedings. If A/NZ so apply, Japan would have no objection to such joinder, provided that it does not affect the individual responsibilities of Australia and New Zealand. In the meantime, pending such an order, Japan will proceed, without prejudice to its objections to jurisdiction, as if the Tribunal had already made it and hopes that this course will prove convenient and acceptable to the Tribunal.

consent of Australia and New Zealand is unlawful.3 Japan asserts that it was entitled to initiate its EFP, and indeed bound to do so, in order to discharge its obligations concerning the conservation and optimum utilization of southern bluefin tuna. At the core of the dispute is a disagreement between the Applicants and Japan over the evaluation of scientific evidence concerning the current state and recovery prospects of those stocks and the means by which the scientific uncertainty can best be reduced.

3. As will presently be seen, the dispute is not one about the application of UNCLOS.

It is, rather, a dispute about the implementation of the CCSBT. This is not merely a

semantic distinction. It is one which has a real and direct bearing not only upon this

Tribunal’s jurisdiction but also, if (contrary to Japan’s contention) the Tribunal were to

find that it has jurisdiction, upon the identification and consideration of the substantive

issues in the case. In contrast with UNCLOS, the CCSBT contains no provision for

the compulsory settlement of disputes relating to its application, whether by this

tribunal or any other, in the absence of the express consent of the Parties. The CCSBT

is in this respect identical with Article XI of the Antarctic Treaty4, Article XXV of the

Convention on the Conservation of Antarctic Marine Living Resources (“CCAMLR”)5

2 Annex 1. 3 See the Australian Note, 23 June 1999, Annex 33, Statement of Claim, para. 2; New Zealand Note, 24 June 1999, Annex 35, Statement of Claim, para. 2. 4 Article XI of the Antarctic Treaty provides: “1. If any dispute arises between two or more of the Contracting Parties concerning the interpretation or application of the present Treaty, those Contracting Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. 2. Any dispute of this character not so resolved shall, with the consent, in each case, of all parties to the dispute, be referred to the International Court of Justice for settlement; but failure to reach agreement on reference to the International Court shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 of this Article.” 5 Article XXV of the CCAMLR provides: “If any dispute arises between two or more of the Contracting Parties concerning the interpretation or application of this Convention, those Contracting Parties shall consult 2

and a number of other treaties on marine matters in respect of which the Parties have deliberately chosen to exclude the compulsory jurisdiction of any international tribunal—an exclusion which would be set at nought if the device now being employed by A/NZ were allowed to prevail and which would have grave and widespread repercussions on the regimes established by such treaties. A list—still incomplete—of such treaties is appended as Annex 47.

4. The situation is clearly analogous to the one which arose before the International

Court of Justice (“ICJ”) in the Fisheries Jurisdiction case between Spain and Canada in 1998. There Spain began proceedings against Canada claiming that the measures taken by Canada against a Spanish fishing vessel on the high seas, but within the

Northwest Atlantic Fisheries Organization Regulatory Area, violated Spain’s rights under international law, in particular Spain’s jurisdiction over vessels flying its flag.

Canada responded that its measures were related to the enforcement of fisheries legislation applicable particularly to straddling stocks of Greenland halibut.

5. The significance of the difference between the parties regarding the nature of the dispute lay in its impact on the jurisdiction of the Court. If, as Spain contended, the dispute was one about the general international law of the treatment of vessels on the high seas, then the Court would have had jurisdiction by virtue of the acceptances by both parties of its compulsory jurisdiction under the Optional Clause. If, on the other

among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. Any dispute of this character not so resolved shall, with the consent in each case of all Parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court or to arbitration shall not absolve Parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above. In cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as provided in the Annex to this Convention.” 3

hand, as Canada argued, the dispute was really one about the adoption of measures for the conservation and management of fisheries stocks, then it fell within the exclusion from jurisdiction created by Canada’s reservation to its Optional Clause declaration

(“disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels in the NAFO Regulatory Area . . . , and the enforcement of such measures”).

6. The Court took the view that “it is for the Court itself, while giving particular attention to the formulation of the dispute chosen by the Applicant, to determine on an objective basis the dispute dividing the parties by examining the position of both parties.”6 The Court continued: “The Court’s jurisprudence shows that the Court will not confine itself to the formulation by the Applicant when determining the subject of the dispute . . . [it] will itself determine the real dispute that has been submitted to it . . . . It will base itself not only on the Application and final submissions but on diplomatic exchanges, public statements and other pertinent evidence”.7 The Court made it plain that it would look for “the essence of the dispute”.8

7. After considering the facts of the matter closely the Court concluded that the dispute between the parties “had its origin in the amendments made by Canada to its coastal fisheries protection legislation and regulations and in the pursuit, boarding and seizure of the Estai which resulted therefrom. Equally, the Court has no doubt that the

6 Judgment, 4 December 1998, para. 30. Emphasis supplied. 7 Ibid., paras. 30-31. 8 Ibid., para. 35.

said dispute is very largely concerned with these facts”.9 The Court concluded that it

had no jurisdiction to adjudicate the dispute.10

8. Put in its simplest terms, Japan’s contention is that what has been brought before

this Tribunal as a dispute allegedly involving the application of UNCLOS is in truth a

dispute wholly about the implementation of the CCSBT. As Japan has not assented to

the submission of this dispute to this Tribunal, there is no basis on which it can

properly concern itself with the case. Japan therefore requests the Tribunal so to find

and, in consequence, forthwith to bring the proceedings completely to an end.

II JAPAN’S PARTICIPATION IN THE PRESENT PROCEEDINGS

9. Japan, being confronted by the fact that proceedings against it have been started

under Part XV of the UNCLOS, albeit wrongly, and being a party to UNCLOS,

appreciates that it must respond to the initiation of these proceedings, no less out of

respect for this honorable Tribunal than out of legal obligation, even though it does so

only for the purposes of contesting the jurisdiction of this Tribunal. Japan has indeed

cooperated fully in the establishment of this Tribunal. But Japan has made it clear that

its appearance is entirely without prejudice to its contention that the present

proceedings could have been brought against Japan only if it had given its consent

under the CCSBT, Article 16. This has not been done; and even if Japan were to have

consented to arbitration under CCSBT, Article 16, the arbitration tribunal therein

provided for should not have been the present Tribunal.

9 Ibid., para. 87. 10 Id. 5

III EARLIER CONSIDERATION OF THE MATTER BY THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

10. Before explaining why this dispute is one under the CCSBT and not one under

UNCLOS, Japan should mention that the case has already received some limited consideration by the International Tribunal for the Law of the Sea (“ITLOS”). This is because of the special nature of the UNCLOS dispute settlement provisions. In pursuit of an intention to create methods of compulsory dispute settlement for disputes relating to the interpretation or application of its provisions that could be accepted by as many parties as possible, UNCLOS instituted in Article 287 a system of choice of procedure for the binding settlement of disputes concerning the interpretation or application of that Convention, the competent procedure being that chosen by mutual assent. In cases where not all Parties have selected the same procedure, arbitration under Annex VII is the residual competent compulsory procedure. That is the position in the present case. None of the parties in these proceedings has made a formal choice.

11. UNCLOS anticipates the possibility that if a claimant invoking arbitration wants to seek as a matter of urgency the prescription of provisional measures of protection under Article 290 of UNCLOS, there will be a period before the arbitral tribunal can be constituted and, therefore, during which that tribunal would obviously be unable to act on such a request. To bridge this gap UNCLOS, in Article 290(5), provides that a claimant can have recourse to the ITLOS pending the constitution of an arbitral tribunal for the purpose of prescribing provisional measures if ITLOS considers that prima facie the Annex VII tribunal once constituted would have jurisdiction and that the urgency of the situations so requires.

12. So, having notified Japan of their Statements of Claim in arbitration proceedings on 15 July 1999, A/NZ followed on 30 July 1999 with Requests to ITLOS for provisional measures.11 In the ensuing proceedings before ITLOS in August 1999

Japan contended that there was no prima facie jurisdiction in the prospective arbitral tribunal and, moreover, that there was no urgent need for the provisional measures sought. ITLOS rejected both contentions in its Order of 27 August 1999.12 Regarding jurisdiction, however, ITLOS made it plain that it was asked to find, and found, no more than that prima facie the present Tribunal would have jurisdiction.

13. The ITLOS decision is not binding on this Tribunal either in its effect or in its expression. Its effect is limited by the very terms of Article 290(5) of UNCLOS:

“ . . . Once constituted, the tribunal to which the dispute has been submitted [that is to say, the present Tribunal] may modify, revoke or affirm these provisional measures . . .”.

Its expression, the reasoning and substance of its decision, cannot be binding because the task of ITLOS was to do no more than consider whether there might exist a prima facie case for the existence of the jurisdiction of this Tribunal. In their “Notice under

Article 14 of the Guidelines of the Tribunal” (ITLOS), of 17 August 1999, p. 2, A/NZ said: “Australia and New Zealand emphasize that as this is a provisional measures application, final determination of issues of jurisdiction and the merits is not required”.

It is now up to this Tribunal to determine whether it actually has jurisdiction.13 Indeed, as was said by Counsel for New Zealand in the course of argument before ITLOS:

“It will be for the arbitral tribunal under Part XV—unless the parties otherwise agree—to decide whether any jurisdictional objection Japan may make is valid

11 Dossier 1 and 2. 12 Dossier 27. 13 UNCLOS, Article 288(4) provides: “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter is to be settled by decision of that court or tribunal.” 7

or not. For present purposes it is enough that the claim is prima facie properly brought under Part XV of UNCLOS. That is really the only issue”.14

14. Moreover, it is well established in the jurisprudence of the ICJ, in relation to its

own comparable practice, that a decision that it has prima facie jurisdiction to indicate

provisional measures of protection leaves the Court entirely free, when giving full

consideration to jurisdiction at a later stage, to find that it in fact lacks jurisdiction; and

it has done so in several instances. Thus, in the Fisheries Jurisdiction (Interim

Measures) case, the Court said that the decision on interim measures:

“in no way prejudges the question of the jurisdiction of [the tribunal] to deal with the merits of the case or any questions relating to the merits themselves and leaves unaffected the right of the Respondent to submit arguments against such jurisdiction or in respect of such merits.”15

And the same is true of any consideration that it may have given to the merits at the

provisional measures stage. As has been clearly stated in the Joint Declaration made

by Vice-President Ammoun and Judges Forster and Jiménez de Aréchaga in the

Fisheries Jurisdiction case:

“When indicating interim measures the Court must only take into account whether, if action is taken by one of the Parties pending the judicial proceedings, there is a likelihood of irremediable damage to the rights which have been claimed before it and upon which it would have to adjudicate. It follows, therefore, that a vote for this Order cannot have the slightest implication as to the validity or otherwise of the rights protected by such Order or of the rights claimed by a coastal State dependent on the fish stock of its continental shelf or of a fishing zone. Those substantive questions have not been prejudged at all since the Court will, if it declares itself competent, examine them, after affording the Parties the opportunity of arguing their cases”.16

14 Verbatim Record, 18 August 1999, morning session, p. 24, ll. 32-35. See also Counsel for Australia, ibid. p. 29, ll. 27-28. (Dossier 21). 15 ICJ Reports 1972, p. 12, at 16. See also Anglo-Iranian Oil Company (Preliminary Objection) case, ICJ Reports 1952, p. 28; Nuclear Tests cases, ICJ Reports 1974, pp. 253, 457; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Provisional Measures), ICJ Reports 1993, at p. 23, para. 51. 16 ICJ Reports 1972, at pp. 18-19. See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Provisional Measures), ICJ Reports 1993, at 4. 8

PART TWO THE FACTS

15. The following statement of facts focuses on those that are relevant to the issue of the jurisdiction of this Tribunal. Japan is not seeking here to enter into the merits of

the case as presented by A/NZ. This is not the place to consider whether Japan has or

has not acted in conformity with UNCLOS. That is a question that only arises if the

Tribunal should find, contrary to Japan’s contention, that it has jurisdiction under

UNCLOS. For the purposes of the present stage of the case it is sufficient for Japan to

show that the issues raised by A/NZ on the basis of the general provisions of UNCLOS

are in truth covered by the specific provisions of the CCSBT and are subject only to

the dispute settlement provisions adopted therein by the Parties to that Convention

(deliberately delineated as they are).

16. In setting out the facts that are material to the identification for jurisdictional

purposes of the character of the dispute, occasional mention will be made of facts of a

technical nature that are or may appear to be primarily relevant to the substance of the

dispute. This is unavoidable because it is impossible to provide evidence that the

matters in dispute were matters which referred solely to the implementation of the

CCSBT except by referring to the substance of the discussions among the Parties within the framework of the Commission under the CCSBT. But such reference is made only for the purpose of proving the fact of the discussion and the context in, and

the treaty by reference to which, it took place; it is not for the purpose of entering into

the merits of the case. Such reference does not require, and would not justify, joining

the question of jurisdiction to the question of merits.17

17 The material required to substantiate in detail the statements of fact made herein would be very 9

IV CATCHING SBT AND EARLY EFFORTS AT CATCH LIMITATION

17. SBT (Thunnus maccoyii) are a highly migratory species listed in Annex I of

UNCLOS. Their only known spawning ground is in the waters south of Indonesia.

The species spends its life in the high seas and exclusive economic zones (“EEZ”)

initially around the west and south of Australia and eventually can be found in the high

latitude part of the southern hemisphere, mainly in the Indian Ocean.18 The fish are

much sought after not only by Japanese, Australian and New Zealand fishermen, but

also by fishermen from Indonesia, Taiwan, the Republic of Korea (“ROK”) and some

flag of convenience countries.

18. Commercial fishing of the species developed from the early 1950s, reaching its

highest level of 81,000 metric tons (“mt”) in 1961. Japanese fishing has been by

longline methods in which the fish are individually caught on hooks attached to long

lines. Mainly large fish are caught. Australian fishing has been by purse seine methods

which involve catching fish in nets. Australia has in general targeted younger, smaller,

fish, with the consequence that each ton of fish caught by Australian methods involves

taking more fish than are taken by Japanese methods. For each ton caught, therefore,

Australian fishing has a greater adverse long-term effect upon the stock. In 1971, the

Japanese industry introduced voluntary conservation to restrict fishing areas/seasons in

order to avoid catching small size fish as well as spawning stock.

bulky and for the most part has been lodged with the Tribunal as part of the Dossier. Japan believes that the statements in the text are largely non-controversial and that the Tribunal therefore need not be hindered with such supporting material in the form of footnotes and annexes. If, however, A/NZ should disagree with the statements of fact in any material detail, Japan reserves the right to produce further material pertinent thereto in the period between the filing of the A/NZ Counter-Memorial on Jurisdiction and the commencement of the hearings. This said, however, Japan expresses the hope that statements of fact that are made mainly to provide the Tribunal with background knowledge will not unnecessarily be made subjects of controversy. 18 See the sketch map accompanying Japan’s Response of 20 August 1999 to the Further Request (Questions) of ITLOS, reproduced in Annex 2. 10

19. In 1982, Japan, Australia and New Zealand began informally to manage the

catching of SBT. Scientists of the three countries recommended that the goal of

management should be to achieve the parental stock levels that existed in 1980 in order

to secure future levels of recruitment (entry of new fish into the fishery). The three

States agreed to set a Total Allowable Catch (“TAC”) applicable to all three States in

1985. This was gradually reduced from 38,650 mt in 1985 to 11,750 mt in 1989, a

reduction of approximately 70% in 4 years. Japan contributed to this reduction by

reducing its quota by 74% from 23,150 mt in 1985 to 6,065 mt in 1989. On several

occasions during this period the Japanese tuna industry provided Australian tuna

fishermen with financial and/or technical assistance with a view to reducing Australia’s

catch of juveniles.

V THE ADOPTION OF UNCLOS, 1982, AND OF CCSBT, 1993

20. During the period of these developments, the UNCLOS was adopted on 10

December 1982 but did not enter into force until 16 November 1994. Australia

ratified the Convention on 5 October 1994, Japan on 20 June 1996 and New Zealand

on 19 July 1996. These three States adopted the CCSBT on 10 May 1993. It entered

into force on 20 May 1994.

21. Since the relationship of the terms of these two treaties lies at the heart of the present case, it is necessary to refer to them in a little detail.

A UNCLOS, 1982

22. A/NZ rest their case primarily on UNCLOS, Articles 64 and 116-119.

23. Article 64 is entitled “Highly Migratory Species”. Paragraph 1 provides as follows:

“1. The coastal State and other States whose nationals fish in the region the highly migratory species listed in Annex I [which includes SBT] shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work.”

24. Articles 116-119, invoked by A/NZ, constitute the bulk of the section entitled

“Conservation and Management of the Living Resources of the High Seas”.

25. Article 116 provides that

“All States have the right for their nationals to engage in fishing on the high seas subject to:

(a) their treaty obligations; (b) the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67; and (c) the provisions of this section.”

26. Article 117 provides that

“All States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas”.

27. Article 118 calls for the co-operation of States in the conservation and management of living resources. It provides as follows:

“States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They shall, as appropriate, cooperate to establish subregional or regional fisheries organizations to this end.”

28. Article 119 is headed “Conservation of the living resources of the high seas”.

It provides as follows:

“1. In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, States shall:

(a) take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global;

(b) take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.

2. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned.

3. States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State.”

B CCSBT, 1993

29. In 1993 the conservation efforts of the three countries were institutionalized by the

conclusion of the CCSBT. The objective of the Convention is stated to be “to ensure,

through appropriate management, the conservation and optimum utilisation of SBT”

(Article 3). The Parties agree, in Article 5, to take measures to ensure the enforcement

of the Convention; to provide scientific information, fishing catch and effort statistics

and other data relevant to the conservation of SBT; to cooperate in collection and

exchange of fisheries data, biological samples and other information relevant for scientific research on SBT; and to cooperate in the exchange of information regarding any fishing for SBT by nationals of any State or entity not a party to the Convention.

30. The instrument for the furtherance of the ends of the CCSBT is the Commission for the Conservation of SBT (“the Commission”). The Commission is to meet at least once a year. Each Party is to have one vote, and decisions of the Commission are to be taken by unanimous vote.

31. The specific functions of the Commission are to collect and accumulate relevant information and consider such matters as “the interpretation or implementation of the

Convention and the measures adopted pursuant to it” as well as “regulatory measures for conservation, management and optimum utilisation of SBT”. In addition, the

Commission is to consider matters which shall be reported by, or which may be entrusted to, the Scientific Committee (as to which see below).

32. The Commission is expressly called upon

“for the conservation, management and optimum utilisation of SBT: . . . [to] decide upon a total allowable catch (“TAC”) and its allocation among the Parties . . .” (Article 8(3) (a)).

In deciding upon allocations, the Commission is required to consider a number of factors which include relevant scientific evidence, the need for orderly and sustainable development of SBT fisheries, the interests of the Parties through whose EEZ or fishery zone the SBT migrates, the interests of Parties whose vessels engage in fishing for SBT, the contribution of each Party to conservation and enhancement of, and scientific research on, SBT, together with any other factors which the Commission deems appropriate. (Articles 8(4)(a-f)).

33. The Commission is also empowered to decide upon recommendations to the

Parties in order to further the attainment of the objectives of this Convention (Article

8(5)). The Commission is to take full account of the report and recommendations of

the Scientific Committee (Article 8(6)). Decisions of the Commission under Article

8(3) are binding on the Parties (Article 8(7)). The Commission is also to develop

systems for monitoring all fishing activities related to SBT.

34. The Scientific Committee is established as an advisory body to the Commission

(Article 9(1)). Its functions are to assess and analyze the status and trends of the

population of SBT; to co-ordinate research and studies on SBT; to report to the

Commission its findings or conclusions, including consensus, majority and minority

views, on the status of SBT stock; and to make recommendations to the Commission

on matters concerning conservation, management and optimum utilization of SBT

(Article 9(2)). Each Party has a representative on the Committee.

35. Additionally, there is provision for a Secretariat of the Commission, and for a

budget. The Parties also agree to take measures in relation to non-Party States and

other entities engaged in fishing for SBT by inviting them to participate in relevant

meetings (Article 14(1)) and by taking other steps foreseen in Article 15.

36. As can be seen from a close comparison of the above-described provisions of

UNCLOS and CCSBT, there is no aspect of the cited articles of UNCLOS that is not

covered by the terms of CCSBT. Thus UNCLOS Article 64 is covered by the very

fact of the conclusion of CCSBT. UNCLOS Article 116 is also covered generally by

CCSBT as a whole and in particular by CCSBT Article 8(4)( c) and (d). UNCLOS

Article 117 is covered by CCSBT Article 5(1). UNCLOS Article 118 is covered by

CCSBT generally and by the mandate specifically given to the Commission in Article

8. UNCLOS Article 119 is covered by the detailed duties of the CCSBT Commission and Scientific Committee set out in Articles 8 and 9 respectively of the Convention.

VI THE CCSBT DISPUTE SETTLEMENT PROVISIONS AND THEIR PREPARATORY WORK

37. Article 16 contains dispute settlement provisions similar to or virtually identical with those in the Antarctic Treaty, 1959, Article XI,19 the CCAMLR, 1980, Article

XXV,20 the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, 1994, Article XIII,21 and the Agreement on the Conservation of Cetaceans of Black Sea, Mediterranean Sea and Contiguous Atlantic Oceans, 1997,

Article XII.22 All these Conventions, while foreseeing the possibility of recourse to the

ICJ or to arbitration with the consent of the parties, clearly and deliberately exclude the possibility of compulsory judicial or arbitral settlement.

38. There are no agreed minutes of the travaux préparatoires of the CCSBT signed by the Parties. It is possible, however, to trace the evolution of Article 16 through a series of drafts exchanged by the Parties from as early as 1988.23 These drafts show

19 See footnote 4 above. Japan does not believe it necessary to burden the Tribunal with the full texts of the treaties referred to in this and the following footnotes since it is only the dispute settlement provision in each treaty that is relevant to this part of the Memorial. The same remark is also applicable to the documents from which the drafts cited in paragraphs 37-47 below relating to the travaux préparatoires are taken. Japan believes that the narrative will not be questioned. But if it is and the Tribunal or A/NZ request the provision of the whole of any particular document, Japan will seek to provide it. 20 See footnote 5 above. 21 Article XIII of the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea provides: “If any dispute arises between two or more of the Parties concerning the interpretation or application of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by available peaceful means of their own choice.” 22 Article XII of the Agreement on the Conservation of Cetaceans of Black Sea, Mediterranean Sea and Contiguous Atlantic Oceans (1997) provides: “1. Any dispute which may arise between two or more Parties with respect to the interpretation or application of the provisions of this Agreement shall be subject to negotiation between the Parties involved in the dispute, or to mediation or conciliation by a third party if this is acceptable to the Parties concerned. 2. If the dispute cannot be resolved in accordance with paragraph 1 of this Article, the Parties may by mutual consent submit the dispute to arbitration or judicial settlement. The Parties submitting the dispute shall be bound by the arbitral or judicial decision.” 23 The preparation of this Memorial has required an extensive search, under conditions of great 16

that the question of dispute settlement was given due consideration by the parties and that the decision to adopt the present text, which precludes non-consensual arbitration, was deliberately taken in preference to one that would have given compulsory jurisdiction to an arbitral tribunal. It is, moreover, evident that the Parties never contemplated that settlement of CCSBT disputes would ever take place under

UNCLOS dispute settlement procedures.

39. The first draft, dated 7 April 1988, was prepared by New Zealand and was tabled at a meeting of a Trilateral Working Group on Possible Institutional Arrangements for

International Management of SBT, 19-21 April 1988.24 It contained a dispute settlement article virtually identical with Article XXV of the CCAMLR.

40. At the same meeting Australia tabled a draft with the dispute settlement provision more briefly expressed:

“Article 8.1. If any dispute arises between any two or more of the parties concerning the interpretation or application of this Agreement, those parties shall consult among themselves and with any other party whose interests may be affected with a view to resolving the dispute amicably as early as possible.”25

41. The second meeting of the Trilateral Working Group was held on 8-10 September

1988 and had before it a Consolidated Working Text dated 26 August 1988 prepared by Australia. This contained no more than the first paragraph of the dispute settlement provision of the CCAMLR, followed by a note that:

“New Zealand favours the inclusion of a clause specifically referring to the International Court of Justice and other dispute settlement mechanisms.”26

urgency, in materials that have passed to the archives and are not easily accessible. As the search continues and further documents may come to light, Japan wishes to reserve the possibility that it may need to submit further material to the Tribunal after first informing A/NZ of its nature and content. 24 Annex 3.1. 25 Annex 3.2. 26 Annex 3.3. 17

42. The third meeting of the Trilateral Working Group (25-28 July 1989) had before it a draft tabled by Japan. The dispute settlement article was noted as being identical to the consolidated text on this issue.27 That text was identical with the first paragraph of the CCAMLR text. There was no discussion of the dispute settlement article at the fourth meeting of the Trilateral Working Group on 13-16 September 1989. As part of the Final Clauses, it was agreed to leave this item to the Legal Drafting Group.

43. There then appears to have been an interval of over two years before any further documents emerged. A draft, from Japan, marked 30 January 1992,28 reproduced the previous single paragraph text based on the first paragraph of the CCAMLR. The next document, headed “Australian input to Japan’s 1992 draft text”,29 contains a slight alteration of the CCAMLR text, but still no compulsory procedure.

44. This was echoed in another Japanese draft proposed on 10 February 1992:30

“Article XIII [Dispute settlement]

If any dispute arise between two or more of the Contracting Parties concerning the interpretation or application [implementation] of this Convention, those Contracting Parties shall[, before requesting consideration by the Commission under Article V: paragraph 3(1),] consult among themselves with a view to having the dispute resolved by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.”

This manifestly did not create compulsory jurisdiction.

45. The next draft is headed “Consolidated Working Text, 13 February 1992”.31 This contains two texts—the first is a repetition of the Japanese draft set out above; the second is a text which is attributed to New Zealand:

27 Annex 3.4. 28 Annex 3.5. 29 Annex 3.6. 30 Annex 3.7. 18

“Article XV [Dispute Settlement]

1 If any dispute arises between two or more of the Parties concerning the interpretation or application of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.

2 Any dispute of this character not so resolved shall, with the consent in each case of all Parties to the dispute be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court or to arbitration shall not absolve the Parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above.

3 In cases where the dispute is not resolved it shall be referred to arbitration in accordance with the Annex to this Convention. (NZ)”

As can be seen, the first two paragraphs are identical with the whole of Article XI of the Antarctic Treaty 1959 and with the first two paragraphs of Article XXV of the

CCAMLR. The third paragraph, however, introduces the idea of compulsory arbitration if the dispute is not otherwise resolved. It was proposed that there should be an Annex dealing with arbitration.

46. Australia commented as follows:

“Article XV: Dispute Settlement

Before making a decision on this provision we would appreciate clarification from New Zealand on what provisions are intended for inclusion in the proposed Annex on arbitration. Prima facie, we believe that the paragraph suggested by Japan coupled with the paragraph similar to that in para 3 of the NZ proposal and an appropriate Annex would be acceptable.”

New Zealand’s comments were as follows:

“Article XV: Dispute Settlement

New Zealand does not accept Japan’s argumentation for deletion of the New Zealand proposal under this Article. Australia has asked for an explanation by New Zealand of the content of the proposed annex on arbitration. As indicated

31 Annex 3.8. 19

during the February session in Wellington, New Zealand believes that the Annex on Arbitration in CCAMLR is a good model for the SBT convention.”32

This comment did not explain, however, why New Zealand, while regarding the

CCAMLR as a “good model”, had replaced the optional recourse to arbitration therein by a compulsory one.

47. The next draft eliminates the reference in paragraph 3 to compulsory arbitration.

It appeared at the 6th Working Group on Institutional Arrangements of CCSBT and is headed “Canberra, 14 August 1992.”33 It was agreed by the delegates and is as follows:

“Article 16

Dispute Settlement

1. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, consultation, arbitration, judicial settlement or other peaceful means of their choice.

2. Any dispute of this character not so resolved shall, with the consent in each case of all Parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court or to arbitration shall not absolve Parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above.

3. In cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as provided in the Annex to this Convention.”

After further consideration by each delegation, the parties agreed on the draft in

October 1992 at the 11th Trilateral Management Meeting with certain minor amendments which are underlined in the text below:

“Article 16

32 Annex 3.10. 33 Annex 3.11. 20

Dispute Settlement

1. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation , arbitration, judicial settlement or other peaceful means of their own choice.

2. Any dispute of this character not so resolved shall, with the consent in each case of all Parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court of Justice or to arbitration shall not absolve Parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above.

3. In cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as provided in the Annex to this Convention. The Annex forms an integral part of this Convention.”

48. This series of drafts shows beyond doubt that the possibility of compulsory dispute settlement was considered and deliberately was not adopted. No suggestion was made that recourse to the dispute settlement provisions of UNCLOS could provide an alternative and compulsory method of achieving judicial or arbitral settlement of disputes under CCSBT.

49. Subsequent to the establishment of the CCSBT in 1993 the co-operation of the

Parties in relation to SBT has been pursued entirely within the framework of the

Convention. The Commission established as a management goal the recovery of the

SBT parental stocks to 1980 levels with 2020 as the target year for achieving this

objective.

A Activity in and of the Commission, 1994-199734

50. From the first Commission meeting held in May 1994, Japan has, on the basis of scientific advice, argued that the TAC should be increased while A/NZ have argued that the TAC should be held steady or even decreased. The Commission has been unable to reach unanimous agreement on the TAC and national allocations for the

1998 fishing season and thereafter. This is because of the Parties’ widely divergent

assessments of the condition of the SBT stock and the prospect of its recovery to 1980

levels. These divergent assessments largely reflect the different weights assigned by

different scientists to alternative assumptions in what is otherwise generally a common

analytical framework.

51. Japan’s continuing and continuous commitment to the work of the Commission is revealed in a number of facts. Even before the establishment of the Commission, Japan had repeatedly proposed the development of a joint EFP. In 1991 Japan agreed to the establishment of a Real Time Monitoring Programme (“RTMP”) with the objective of securing data on a more timely basis and collecting information regarding fish density for areas historically fished but in which fishing had been curtailed as a result of quotas.

But the RTMP was terminated in 1995—when Australia found itself unable to continue to allocate a portion of its national quota to the RTMP.

52. In May 1994, at the First Annual Meeting of the Commission, Japan proposed for the first time the concept of an EFP conducted within the Commission framework to gather data in those areas where fishing had taken place in the past. Japan suggested that an additional plenary meeting of the Commission be held in September 1994 to

34 See generally the declaration and annex thereto of Masayuki Komatsu dated 6 August 1999, Annex 4 to Japan’s Response to Request for Provisional Measures, 6 August 1999. (Dossier 9.4 and 9.4.1). 22

consider the proposal. A/NZ did not accept the suggestion. So when the RTMP ended in 1995, the Commission was left with no source of information with respect to fish density at times and in areas from which fishing activity had receded by reason of the Parties’ earlier curtailment of their activities.

53. In the course of late 1995 and 1996 Japan made various proposals in the

Commission for an increase of TAC and a jointly-conducted EFP. These proposals were based on scientific analysis showing that an increase in TAC would not harm the

SBT stock and that an EFP would facilitate the collection of data enabling the

Scientific Committee to come closer to agreement with respect to stock assessment.

For the seventh successive fishing season, however, the Commission in April-May

1996 held the TAC at 11,750 mt. Japan’s agreement was once again secured by

Australia’s renewed threat to exclude all Japanese fishing vessels that were catching yellowfin and bigeye tuna as well as SBT from Australia’s exclusive economic zone and its ports.

54. Nonetheless, at the Second Special Meeting of the Commission,

“the parties considered the issue of experimental fishing programme and came to a general agreement to work collaboratively on timely development and evaluation [of an] experimental fishing programme. The parties noted that EFP proposals, while carrying additional short term risk, can be an effective tool for reducing uncertainty in stock assessment, resulting in more responsive management”.35

55. In a document produced at the same special meeting and entitled “Objectives and principles for the design and implementation of an EFP,” the Commission acknowledged that “increasing removals (catch) above the current TAC should

35 Report of the Second Special Meeting of the Commission for the Conservation of Southern Bluefin Tuna, Canberra, 29 April to 3 May 1996. (Dossier 9.20). 23

provide an opportunity for experimental fishing programme to proceed”.36 The

document states that, before proceeding with an EFP, the Commission would need to

agree both on the way in which the EFP would be conducted and on the way in which

results coming from the programme would be incorporated into the stock assessment

and the future management decision-making for the fishery.

56. The Commission received a scientific report proposing a three step process:

(1) agreement on the range of uncertainty to be considered in evaluation of EFP proposals;

(2) an initial evaluation of the effect of changed catch levels on the prospect of recovery; and

(3) evaluation of how to use the information derived from the EFP.

The report indicated that there was nothing to prevent Step 3 from being conducted in parallel with Steps 1 and 2. The Commission then agreed a timetable involving the completion of Steps 1 and 2 in late May 1996 so that it could consider specific EFP proposals at its September 1996 meeting and commence a pilot EFP before the end of

1996.

57. Late in May 1996, however, the implementation of the agreed timetable was

prevented by Australian scientists who then used the failure to meet the timetable as an

excuse to block consideration of an EFP at that time.

58. When the matter was next proposed to be considered, at the Second Meeting of

the Scientific Committee from 26 August to 5 September 1996, a Japanese request for

the Committee to allocate one half-day of the Committee’s 11-day meeting to

consideration of its EFP proposal was rejected after more than three days of debate on

36 Objectives and Principles for the Design and Implementation of an EFP, Canberra, 3 May 1996. (Dossier 4.3). 24

the ground of lack of time. Accordingly, Japan presented its “Joint Pilot Plan” for an

EFP to the Third Annual Meeting of the Commission itself in September 1996 and, in time for the resumption of the meeting in February 1997, circulated a revised version of the proposal incorporating comments received from A/NZ. Once again, however,

A/NZ refused to discuss Japan’s proposal, even for a jointly-conducted EFP, on the ground that Steps 1 and 2 of the framework mentioned above had not been completed.

The meeting ended with the TAC for the 1997 fishing season remaining unchanged once again.

59. The Scientific Committee at its summer 1997 meeting could not complete Steps 1 and 2. The differences between the Parties about TAC surfaced again at the Fourth

Annual Meeting of the Commission which was held in three sessions: September 1997 and January and February 1998. New Zealand proposed a reduction of 3,000 mt;

Australia proposed that no change be made; and Japan urged a 3,000 mt increase.

Faced by an A/NZ refusal to consider its specific pilot joint EFP proposals, Japan eventually announced at the third session that it would voluntarily adhere to its previous quota for commercial fishing and also commence a three-year EFP of 2,010 mt annually beginning in June 1998. However, because negotiations lasted deep into

July, the 1998 EFP was implemented as a pilot program starting on 10 July 1998, with an estimated catch of 1,400 mt.

B Diplomatic Correspondence and Related Matters, February-October 1998

(1) Message from the Australian Energy and Resources Minister, 25 February 1998

60. Japan’s announcement led the Australian Resources and Energy Minister to address a striking message to the Japanese Minister of Agriculture, Forestry and

Fisheries on 25 February 199837 which exactly states in relation to the legal context of the present dispute what Japan is now insisting on. It is a dispute about the implementation of CCSBT, not about UNCLOS. The message of the Australian

Minister is so clear about this, and so important, that it is desirable to quote it in full.

As will be seen, there is not a word in it about UNCLOS or general international law.

It is about a division of opinion regarding the implementation of the CCSBT and nothing else. The full text of the Australian letter follows:

“Dear Minister

I am writing to you to convey my deep concern about recent developments in the Commission for the Conservation of Southern Bluefin Tuna (CCSBT). As you will be aware, the most recent meeting of the Commission was adjourned without agreement being reached on quotas for southern bluefin tuna (SBT) for 1998 or on the matter of experimental fishing.

Members of the CCSBT all share a common objective of achieving the recovery and long-term sustainability of the SBT resource so that our respective valuable SBT industries can have a viable future. Our scientists may differ in their views on the recovery rate of the SBT parent stock, but there is general agreement that the current stock is at less than 10 per cent of the 1960 level. We have agreed on a common target of rebuilding the SBT stock to the 1980 parent stock levels by the year 2020.

However, the current impasse has serious implications for the integrity of this important international fisheries management regime to which Japan, Australia and New Zealand are founding parties. I am concerned that the conservation and management efforts we have all made in recent years may be jeopardised at a time when continued cooperative action is essential to assure SBT stock recovery.

The difficulties arising in the Commission at present stem from differences of view concerning the capacity of the SBT stock to withstand additional catch, and uncertainty as to future stock status. Australia believes that the catch increases sought by Japan at the most recent CCSBT meeting, ie 3,000 tonnes commercial catch and 2,010 tonnes for experimental fishing, are unsustainable, particularly given the expansion in catches by countries operating outside the CCSBT regime.

I am particularly disturbed to hear that Japan is preparing to commence a unilateral experimental fishing program (EFP), despite the very strong objections from Australia and New Zealand. The Convention for the

37 Annex 4. 26

Conservation of Southern Bluefin Tuna does not provide a basis for unilateral experimental fishing of the type contemplated by Japan.

I am aware of Japan’s view that the EFP is directed at attempting to resolve some of the uncertainty in the stock assessment. However, I consider that, given the strength of objection from other members, and the absence of any formal or legal authority from the Commission to proceed, there are compelling reasons for Japan to refrain from such unilateral action. I would also note that Australia finds the proposed design of Japan’s experimental fishing program flawed in many respects. A paper detailing Australia’s concerns was tabled at the recent CCSBT meeting.

The Commission has agreed to conduct a scientific peer review of the CCSBT stock assessment for SBT which will report in August 1998. This review will assist in narrowing the scientific differences and contribute to the Commission’s decision-making on future quota levels and EFP. In the meantime, I would urge Japan to await the outcomes of the peer review. The Commission members should decide together what management measures and scientific work are appropriate in the light of the results of the 1998 stock assessment and the peer review.

I regret that for the time being Australia will not be in a position to conclude a bilateral fishing access agreement with Japan until agreed quotas have been set within the CCSBT for 1998. Further, as has already been advised through diplomatic channels, a rolling monthly closure of port access arrangements for Japanese fishing vessels will apply from 1 March until the CCSBT has set global quotas for SBT for 1998. I am aware of the loss of benefits that this means for both sides, but as a responsible Commission member, Australia considers that it is inappropriate to facilitate operations which are not subject to catch limits agreed in the CCSBT.

Despite the current difficulties, Australia believes that the CCSBT is the most appropriate international organisation to manage the global SBT fishery. I urge you personally to review Japan’s position with a view to ensuring that it supports the agreed Commission processes rather than taking unilateral action from a short-term perspective, and that if reflects a commitment to long-term responsible management of SBT resources. We need to make our utmost efforts to resolve our differences through measures which are developed cooperatively and endorsed by the Commission. In parallel with this, the Commission and its members need to take active steps to persuade countries operating outside the CCSBT to reduce their SBT catches and to join the CCSBT, or at the very least agree to apply its conservation and management measures.

I have asked my colleague the Minister for Primary Industries and Energy, Mr John Anderson, to take the opportunity to discuss this issue with you at the OECD Agriculture Ministers’ meeting in Paris next week.

Our two countries have a long history of mutually beneficial cooperation in the field of fisheries. Please rest assured that Australia remains

committed to continuing to work with Japan and New Zealand to seek a resolution and to find a mutually acceptable solution to the current impasse.

I hope that we can contribute as Ministers to finding practical solutions on this important issue so as to secure a viable future for a fishery which is valuable to both countries. I look forward to receiving your considered response in the near future.

Yours sincerely

Warwick Parer Minister for Resources and Energy”38

(2) Reply from the Japanese Minister of Agriculture, Forestry and Fisheries, 30 March 1998

61. The Japanese Minister of Agriculture, Forestry and Fisheries replied to the

Australian Minister’s letter on 30 March 1998.39 Like the Australian Minister’s letter, the Japanese Minister’s letter placed the matter squarely within the confines of the

CCSBT:

“Dear Minister

Thank you very much for your letter dated 26 February 1998, regarding the Commission for the Conservation of Southern Bluefin Tuna (CCSBT).

Let me emphasize anew to you that the Japanese Government firmly commits itself to the CCSBT Convention. I am, therefore, deeply disappointed at the way CCSBT meetings have been conducted to date, particularly, its failure to reach agreement on both the global catch quota of the SBT and the Japanese proposal for the Experimental Fishing Programme (EFP).

The most significant cause of this impasse seems to me to be a wide difference of views existing between our two countries’ positions concerning the stock assessment of the SBT. As you know, we are convinced, on the basis of the analysis made by the Japanese and foreign (American and South African, for example) scientists who have participated in the CCSBT Scientific Committee, of the recovery of the SBT stock to such a level that would allow additional catches of 3,000 tons without causing adverse effects on the stock even if we would take into account non-member catches. We are also convinced that it would be possible to achieve the CCSBT target of rebuilding

38 Emphases supplied. 39 Annex 6. 28

the SBT stock to the 1980 parent stock level by the year 2020, even if the above-mentioned additional catches would be agreed upon.

I know that you have a different view on it. This letter is not to try to persuade you to agree to my conviction. I rather want to leave the matter aside now and focus on the more fundamental issue of data gathering. For, I believe the difference of views between us on the stock assessment would be solved only by obtaining more scientific data.

Our differences, in my view, are attributable to the difference of assessment with regard to the so-called “uncertainties” in such areas as catch- per-unit-effort (CPUE) data, natural mortality rates, and non-member catches. On top of that the expansion of the so-called “unfished” areas, which has been caused by the reduction of fishing quotas in recent years, has resulted in broadening a gap between the two countries’ stock assessments, because the Australian side prefers to stand on an assumption that only a minimal stock is left in the “unfished” areas: the argument which seems to be untenable unless proved with data.

I have no intention to argue with you on the question of why the Scientific Committee has failed to resolve this matter. I would like to discuss with you on the way to let the Scientific Committee function properly, and to restore credibility to the CCSBT process.

By the way, I would like to remind you that to restore the credibility of the CCSBT by normalising the function of the Scientific Committee is indispensable in order to strengthen our persuasion vis a vis the non-members; another important subject to which I will refer later.

I believe the best way to let the Scientific Committee function properly is to provide it with additional and new scientific data. This is the reason why Japan has been proposing the Experimental Fishing Programme (EFP) since 1995. The EFP is designed to collect new scientific data on the SBT in the areas that have been “unfished” in recent years. The objective of the EFP is to help ensure, on the basis of the best available scientific data, the conservation, management and optimum utilisation of the SBT stock, which are indeed the objectives of the CCSBT Convention itself.

Our proposal includes an assurance that should the EFP would not prove the recovery of the stock, Japan would be prepared to reduce the amount it has caught for the EFP from its future national fishing quota. I also make it clear again that the EFP would not be conducted on top of any additional catch we have proposed. Needless to say, the EFP is not “a pretext to increase Japan’s catch” as your press release once stated. We will freeze our proposals of 3,000 tons additional catch for this year if Australia and New Zealand would agree to the EFP.

The EFP is not a new proposal to you, as you know. Japan has been asking Australia and New Zealand to agree to the EFP since 1995. Ever since we have responded to a series of requests from your side, including the holding

of many workshops, although the Australian side has refused even to discuss the EFP.

Leaving aside our disappointment at the way the issue was handled at the CCSBT, I would like to draw your attention to the Scientific Committee’s last report, which stated that “there was little prospect of completing steps necessary for the implementation of an EFP”. This led me to be convinced that there was no alternative but for Japan to initiate the implementation of the EFP in order to obtain scientific data for the Committee.

I have no objection to conduct a peer review. However, I doubt its capability to produce such results, that could make the EFP unnecessary. It is very doubtful if a review of scientific documents and records of discussion of the Scientific Committee to be conducted by three external scientists within a very limited period of four weeks would be able to produce better results than the Scientific Committee. Most importantly, I wonder if a peer review would help resolve the impasse over the stock assessment, which long and strenuous efforts by the scientists of Japan and Australia could not resolve. We have to note that several internationally renowned scientists from the countries outside of the CCSBT have already been participating in the Scientific Committee since 1995. I believe that any peer review would be meaningful only when its function would be supported by the provision of new additional data.

On the other hand. I also do not wish to see the repetition of a long inconclusive debate on whom for us to select as three panellists.

Japan intends to make the EFP as transparent as possible by taking such steps as open consideration of the plan, participation of foreign scientists in its implementation, monitoring arrangements for research vessels (eg observers and VMS), open data analysis and presentation of the results of the analysis. Japan welcomes Australia’s participation in these steps.

Apart from the EFP, Japan is in agreement with Australia about the necessity to take measure with regard to the issues relating to non-members. We, therefore, supported the adoption of the “Action Plan concerning Promotion of Accession to, and Cooperation with, CCSBT by Non-Member States and Entities” at the Resumed Fourth Annual Meeting of the CCSBT held in January this year.

Japan is disappointed at the Australian position of linking with the CCSBT issues the Japan-Australia bilateral consultations for the access to the Australian 200-mile zone with the CCSBT issues. The bilateral consultations are not related to the CCSBT. Japan and Australia are important partners in the field of fisheries and seafood trade, and it is very important to further develop this long-standing and favourable relationship. Therefore, I hope that Australia would reconsider its position and agree to start bilateral consultation.

In concluding, I would like to emphasize again that Japan wants the CCSBT to fulfil its objectives of promoting the conservation, management and

optimum utilisation of the SBT stock and to be able to resume its function as an effective regional fisheries management organization.

I hope that you will understand Japan’s position and take an initiative to break the impasse over the SBT issues in order to further develop the mutually beneficial Japan-Australia relations in the field of fisheries.

Yours sincerely

Yoshinobu Shimamura Minister of Agriculture, Forestry and Fisheries

(3) Further exchanges, May-August 1998

62. Japan continued to explain its proposals and to negotiate with A/NZ through May and June and into July 1998. Despite Japan’s analysis showing that the pilot EFP would have a negligible effect on the probability of stock recovery, A/NZ adhered to their view that the SBT parental biomass remained “at such a low level that it cannot withstand additional catches beyond the TAC previously agreed.”40 But A/NZ did concede “that a well-designed, implemented and monitored EFP has the potential to make substantial contributions towards improving stock assessments and management”.41 The note of talking points of the Australian Minister for Resources and Energy at a meeting with the Japanese Ambassador to Australia on 8 July 1998 contains the following statements:

“The message sent by Japan’s unilateral action seems clear—that Japan is not prepared to abide by the decisions it has made within the Commission, the internationally recognized body with competence over the conservation and management of SBT . . .”

“Japan is duty bound as a member of the Commission to work through such issues within the consensus framework it established with Australia and New Zealand in 1994 . . .”.42

40 Australia’s and New Zealand’s Response to Japan’s 22 June 1998 Paper and Japan’s Decision Rule Provided on 1 June 1998, 25 June 1998, para. 1. 41 Ibid., para. 14. 42 Annex 7. 31

A press release issued by the same Australian Minister on the same day quotes him as having said:

“Japan is clearly breaching the international southern bluefin tuna convention . . .”.43

63. On 8 July 1998 New Zealand delivered an Aide Memoire to the Japanese

Ambassador referring to Japan’s announcement of its intention to start an EFP for

SBT on 10 July. New Zealand observed that Japan’s action would be “contrary to the consensus decision-making process of the CCSBT” and “without the agreement of the other parties to the CCSBT”. New Zealand stated that it would need “to consider what action would best preserve its rights as a party to the CCSBT”. It asked that

“Japan make a strong commitment to cooperation in the conservation and management of SBT through the consensus decision-making process of the Commission . . .”44

64. This Aide-Memoire was reflected publicly in a Press Release issued on the same day which, after mentioning Japan’s proposed EFP said: “In 1994 NZ, Japan and

Australia formed a CCSBT, aimed at conserving and managing SBT stocks, and since last September parties to the Convention have been attempting to negotiate global catch limits and national allocations”45

65. In neither of these documents was any reference made to UNCLOS or to customary international law.

66. These items were followed on 13 July 1998 by a media release from the New

Zealand Acting Minister of Foreign Affairs and the Minister of Fisheries, announcing that New Zealand had closed its ports to all Japanese fishing boats fishing for SBT.

43 Annex 10. 44 Annex 8. 32

The Ministers said that “Japan’s action was clearly contrary to the spirit of conservation and sustainable management laid out in the CCSBT . . .”46

67. Finally, agreement could not be reached. Japan conducted the pilot EFP from 10

July to 31 August 1998.

(4) A/NZ notes and announcements, 31 August-1 September 1998

68. On 31 August 1998 both Australia and New Zealand addressed identical diplomatic notes to Japan47 alleging that Japan was in breach of its obligations under international law and, in particular, its obligations under the CCSBT, UNCLOS and customary international law. Together with the New Zealand announcement on the same day, and Australia’s on the next,48 this was the first time that references were made to UNCLOS and customary international law. It is clear from the content of the notes and announcements that A/NZ saw the dispute as one that was truly related to the CCSBT and not to UNCLOS. Thus:

1. The notes open with a paragraph that puts the CCSBT first and then follows with an evidently subsidiary reference to UNCLOS and customary international law.

2. The notes then refer in some detail to the deliberations within the Commission under the CCSBT.

3. When indicating the alleged breaches of international law, A/NZ specifically referred to the inconsistency of Japan’s conduct with the stated objectives of CCSBT and asserted that this conduct was “contrary to the decision-making processes set out in the CCSBT ”. (Emphasis supplied.)

45 Annex 9. 46 Annex 11. 47 Annexes 15 and 16.

69. In contrast with this attempt at particularization of the breach of CCSBT, the

references to breaches of UNCLOS were entirely vague and non-specific: “ . . . Japan

has failed to give effect to, and acted in disregard of, a number of its obligations under

UNCLOS. These include obligations concerning the conservation of highly migratory

species, the duty to have regard to the interests of coastal States such as Australia and

the duties to cooperate in, and take such measures as may be necessary for, the

conservation of the living resources of the high seas”. But nowhere in this mention of

UNCLOS did A/NZ specify the respects in which the alleged obligations had actually

been violated as would have been necessary if A/NZ had been invoking the UNCLOS

alone. It hardly needs to be said that pointing to an obligation and asserting that it has

been violated, without actually relating some specific conduct to the alleged breach,

does not serve to identify a cause of action. The act or omission said to violate the

obligation, and the manner in which it does so, must be clearly expressed.

70. A/NZ called for “urgent consultations under Article 16(1) of the 1993 Convention

and pursuant to the general obligations to resolve disputes by peaceful means.” A/NZ

made no reference to Part XV of UNCLOS.

71. A/NZ proposed that the consultations take place “at the headquarters of the

Commission”—so emphasizing further that the matter was essentially a CCSBT one.

(5) Japan’s reply, 9 September 1998

72. Japan replied to the A/NZ notes of 31 August 1998 on 9 September 1998,49

making clear to both Australia and New Zealand that it saw Article 16(1) of the

CCSBT as applicable where disputes arose concerning the interpretation or

48 Annexes 17 and 18. 34

implementation of the Convention. At the same time Japan requested that, even in

relation to CCSBT, A/NZ should clarify the type of action taken by Japan which A/NZ

considered to be inconsistent with Japan’s obligations under the Convention. Japan

emphasized in the note to New Zealand that the provision for consultation “should

only be applied where a dispute arises concerning the interpretation or implementation

of the Convention”. The very subsidiary role to be accorded to UNCLOS and

customary international law was expressed in the next sentence: “In that sense, the

UNCLOS and other laws, such as customary international law, to which the New

Zealand Note refers, only relates to this case within the confines of the Convention”.

The point was even more clearly made in Japan’s Note to Australia of the same date:

“ . . . the UNCLOS, and other related conventions or treaties referred to by the

Australian Government in its Note, do not have any direct bearing in terms of the

consultation under Article 16(1) of the Convention (CCSBT)”.

(6) A/NZ notes, 10 and 11 September and NZ Aide Memoire, 1 October 1998

73. Replying on 10 September 1998,50 New Zealand reiterated that its “references to

acting ‘inconsistently’ with the Convention [CCSBT] including the ‘decision-making

process set out in the Convention’ are clearly references to matters of interpretation

and implementation of the Convention, in the same manner as references to the Law of

the Sea Convention and to customary international law are references to matters of

implementation of the Convention”. Seemingly, New Zealand was thus bringing all its

complaints under the single heading of implementation of the CCSBT.

49 Annexes 19 and 20. 50 Annex 21. 35

74. The Australian reply of 11 September 199851 contains an even more pertinent acknowledgement of the role of the CCSBT dispute settlement procedures. Australia first particularized the alleged breaches by Japan of the CCSBT as including the following:

· “the stated objective in Article 3 of the 1993 Convention to ensure, through appropriate management, the conservation and optimum utilisation of southern bluefin tuna;

· the obligation under the 1993 Convention to cooperate in the achievement of that objective. The obligation to cooperate underpins the 1993 Convention and is mentioned both expressly and by implication in the 1993 Convention;

· the obligation to comply with the decision-making processes of the 1993 Convention—that is, Japan should not have commenced an EFP which involved the taking of a level of catch beyond previously established limits without the approval of the Commission. Also, the conduct of the EFP is inconsistent with previous decisions of the Commission”.

75. The Australian Note then referred to the relationship between the CCSBT and

“other related international obligations”, observing that the close connection between

CCSBT and UNCLOS “is recognised in the preamble to the 1993 Convention”. The

Note continues:

“Therefore, it is open to Australia to raise those other international rights and obligations in this dispute settlement process under Article 16”. (Emphasis supplied).

It is to be observed that Australia did not claim that CCSBT disputes could be raised under the UNCLOS dispute settlement provisions, but expressed the situation the other way round, namely that UNCLOS disputes could be raised under the CCSBT procedures.

51 Annex 22. 36

76. On 1 October 1998 New Zealand, in an Aide-Memoire,52 said that it was pleased to confirm that New Zealand’s position on the existence of a dispute was essentially that taken by Australia.

C Discussions Within and Connected to the Commission of the CCSBT, December 1998-May 1999

(1) Negotiations Under Article 16(1) of the CCSBT, December 1998

77. The connection between the dispute and the CCSBT (and the corresponding lack of connection between the dispute and UNCLOS) is further shown by the fact that at the Negotiations Under Article 16(1) of the CCSBT in Relation to the Dispute

Notified Among the Parties Relating to Japan’s EFP in late December 1998,53 A/NZ again asserted that the EFP violated the CCSBT and invoked the dispute resolution procedures under Article 16(1) thereof. At the same time A/NZ asked for “restitution of the tonnage taken under the 1998 EFP”. With regard to the implementation of a future EFP, Australia reiterated that “it would be prepared to consider a scientifically valid EFP which is agreed by all parties and which is otherwise consistent with the

1993 Convention”.54

(2) The EFP Working Group, February-April 1999

78. The Parties then agreed to create an EFP Working Group, comprising representatives of the Parties as well as independent scientists, to develop a joint EFP.

This Working Group was to use its best efforts to decide upon a joint EFP for submission to the Commission as soon “as practicable, ideally by mid-April 1999”.

52 Annex 23. 53 Record of Discussions: Negotiations Under Article 16(1) of the Convention for the Conservation of Southern Bluefin Tuna in Relation to the Dispute Notified Among the Parties Relating to Japan’s Experimental Fishing Program, Tokyo, 20-23 December 1998. (Dossier 9.7).

Although the independent scientists within the Working Group were to play the same role as the scientists of the parties, it was agreed that, if a consensus could not be reached, “the Parties may invite the independent scientists to play an adjudicatory role in completing the Working Group’s advice to the Commission”.

79. At the first meeting of the EFP Working Group at the beginning of February 1999

Japan was again the only party to submit a concrete EFP proposal for consideration— and this notwithstanding the express understanding of all the Parties to present specific proposals prior to this meeting. The third meeting of the EFP Working Group was held in late March 1999. It had been foreseen as the last in the series, intended to bring the plan for an EFP to finalization.

80. Japan tabled an amended proposal aimed at meeting concerns raised by A/NZ at the third meeting. Australia introduced its first EFP proposal, which it had not circulated in advance of the meeting and which it refused to have included in the official records of the Working Group. Even so, some progress was made towards agreement on a joint EFP for 1999. In particular, the Working Group’s Sub-Group on the Design and Specification of EFP, which concentrated on merging the Japanese and

Australian proposals, agreed that an EFP could be conducted in the regions known as

Area 7, in June 1999, and in Area 8 in July and August 1999.55 This decision was endorsed by the Working Group.

81. In April 1999, at the fourth meeting of the EFP Working Group, Japan presented a proposal amended to take account points raised at the third meeting. In contrast,

Australia presented a new EFP proposal, inconsistent with the agreement reached at

54 Id.

the previous month’s third EFP Working Group meeting, in that it would have excluded fishing in Area 7 and required a random distribution of vessels in Area 8 that was financially impractical. Australia became increasingly insistent upon developing

“fisheries-independent” indices of stock abundance—a position which was even more financially impractical, if not impossible. A/NZ together refused to endorse the

“decision rules” prepared by the chairperson of the Working Group and its independent members and which had been accepted by Japan. These proposed rules stated that it was important to be “as adaptive as possible” during the initial phase of the EFP and also that agreement upon certain areas upon which A/NZ were insisting, such as assessment of EFP results and effect on stock, was “not needed to initiate an

EFP”. Consequently, the EFP Working Group could not finalize a recommendation to the Commission. Japan therefore expressed its willingness to have the independent scientists play an adjudicating role, as contemplated by the agreement of the parties at the December 1998 negotiations under Article 16(1) when the EFP Working Group was established. A/NZ refused to accept this proposal.

(3) Informal Bilateral Meeting between Australia and Japan, April-May 1999

82. At the informal bilateral meeting between Australia and Japan from 30 April to 1

May 1999 Australia proposed a totally new research approach which could include an

EFP. This would have set aside an additional increase of TAC which each party might use for scientific purposes. The additional increase of TAC proposed by Australia was

1,200 mt, which would include allocation to a tagging survey to be conducted by

Australia. This increase fell significantly short of the levels considered necessary by

55 See Annex 2. 39

Japan for a meaningful EFP to be completed during the period of three years. Also,

the proposal involved several fundamental issues such as the establishment of a

technical review panel and the requirement of levy of A$6/Kg of the quota for

research, which required careful discussion. But there was insufficient time to

negotiate all the details and Japan urged Australia to focus on practical discussions to

finalize the 1999 EFP. At an earlier stage, proposing an alternative EFP might have

appeared cooperative, but to the contrary, by proposing a totally new approach and a

significantly lower amount of catch, it contributed effectively to preventing an agreed

EFP.

(4) Fifth Annual Meeting of the Commission, May 1999

83. During the resumed Fifth Annual Meeting of the Commission from 9 to 13 May

1999, the Parties spent most of the time in discussion of the 1999 EFP. Australia

proposed a 1,400 mt increase above the TAC for the EFP (including allocation to a

tagging survey). However, the Parties could not reach consensus on the 1999 EFP.

84. A further final but unsuccessful effort by a high-level Japanese delegation sent to

Australia and New Zealand took place at the end of May 1999. At the time, Australia increased its proposal for an additional increase above the TAC to 1,500 mt.56 In this

connection New Zealand produced a “Summary of Key Issues relating to an

Experimental Fishing Programme, 28 May 1999”57 which demonstrated with striking

56 See Annex 48. A paper containing Australia’s proposal of 1,500 mt was given by the Minister of the Australian Embassy to the Deputy Director General of the Economic Bureau of the Ministry of Foreign Affairs of Japan on 18 May 1999. The same proposal of 1,500 mt was repeated to the Japanese Ambassador to Australia on 26 May 1999 by the Deputy Secretary of the Ministry of Foreign Affairs and Trade of Australia. 57 Annex 25. 40

cogency the limitation of the dispute to matters related to the implementation of the

CCSBT. The importance of this document justifies its being reproduced in full here:

“This paper outlines New Zealand’s view of the progress that has been made as a result of the extensive discussions between the parties since the Article 16 dispute negotiations in December 1998 that established the EFP working group process. It also summarises those areas where New Zealand has compromised on the negotiating position we took to these discussions, and the areas where further work is needed in order to embark on an EFP based on a consensus decision of the parties.

1. Areas of Agreement

i) The parties have agreed that the EFP should be a three year programme with the objective of generating information that will provide a basis for the Commission to make management decisions at the conclusion of the programme. ii) The parties have agreed on some principles for the development and implementation of decision rules based on the draft developed by the Chair and external scientists involved in the EFP working group process. iii) The principle of using independent scientists to assist in resolving assessment questions and to develop comprehensive decision rules has been settled, but further work is necessary to define a process and terms of reference. iv) The programme will include both catch rate and tagging elements, with the tagging initially undertaken on a feasibility basis.

2. Areas where New Zealand has compromised

i) New Zealand has compromised from our position that it was critical that comprehensive decision rules be in place prior to implementation of an EFP. We regarded this as very important to ensure that an EFP is implemented in a manner consistent with the agreed design and that the risk to the stock could be mitigated if the EFP failed to meet its objectives. ii) We have conceded that agreed analysis methods can be developed concurrently with the implementation of a three year programme. This remains a critical issue in order to ensure that the EFP results can be used to improve management decisions. iii) We have sought to negotiate improvements to Japan’s proposed design for the EFP component of a programme rather than develop a design collaboratively that would maximise reduction in uncertainty and minimise removals from the stock.

3. Key issues to resolve

Despite New Zealand’s best attempts through the four meetings of the EFP working group process since December, and the discussion held during CCSBT5(2), differences remained in a number of key areas following the adjournment of CCSBT5(2). These include:

i) An acceptable annual catch level for the EFP needs to be resolved, along with mechanisms to constrain the catch to the agreed amount. ii) The parties need to determine a mechanism to allocate the catch and agree on the manner in which that will influence future allocation decisions. iii) Improvements to the deployment of vessels fishing during 1999 are necessary to address problems evident in data from Japan’s 1998 unilateral EFP. iv) The areas and times to be surveyed over the three years of the programme need to be agreed in principle. v) Japan has agreed to feasibility level tagging on their EFP vessels, but the parties have still to determine how to resource and undertake tagging from pole vessels in the Australian zone. vi) Arrangements for the provision of monitoring information need to be concluded. vii) A process to develop agreed analysis methods is necessary to ensure EFP results can be used to improve management decisions. viii) The sharing of data between the parties needs to be resolved to allow for reasonable access to data that would allow for independent analysis. ix) The parties need to decide on the related issue of the TAC that will apply over the course of the EFP.”

It may be noted that this document does not identify a single key issue requiring

resolution in respect of which it would be necessary or possible to have recourse to

UNCLOS.

85. This paper was accompanied by a New Zealand Aide-Memoire58 of the same date

which included the statement that “as a fundamental principle we remain committed to

the CCSBT and to co-operation amongst parties to ensure an effective southern blue

fin tuna management regime”. The Aide-Memoire contained a formal request that

Japan “not proceed with this EFP without the consent of all parties to the Convention

[the CCSBT]”.

D Commencement of the EFP, 1 June 1999

86. On 1 June 1999 Japan commenced its three-year EFP, based on Japan’s stock assessment and taking into account the Australian suggestion of 1500 mt. It so

58 Annex 25. 42

informed Australia on the same day, stating that Japan had made extraordinary efforts to reach an agreement in the negotiations and that it had accepted as much as possible requests from A/NZ, including a tagging survey.59 On 4 June 1999 Japan conveyed the same information to New Zealand,60 stating that it had made all its best efforts to accommodate the position of New Zealand “on such issues as improvements of the deployment of vessels and observer coverage, tagging survey and a part of random sampling survey”. Japan also stated that it was “ready to adjust its EFP when a consensus is reached among the parties”. To this end, it urged the continuation of the dialogue between the parties.

E Renewed Exchanges, June-July 1999

(1) A/NZ Protests, 7 and 8 June 1999

87. On 7 June 1999 Australia informed Japan that the latter’s action in

“recommencing unilateral experimental fishing without the agreement of the other

Parties to the CCSBT has terminated unilaterally the negotiations commenced in

December 1998 under Article 16(1) of the Convention”.61 (Emphasis supplied.) On 8

June 1999 New Zealand sent a similar note to Japan.62 The reference in the Australian note to the need for “the agreement of the other Parties to the CCSBT” is a further manifestation of the fact that the dispute is really one about the application of the

CCSBT and not about anything else.

59 Annex 27. 60 Annex 28. 61 Annex 29. 62 Annex 30. 43

(2) Japanese responses, 15 and 16 June 1999

88. On 15 and 16 June 1999 Japan addressed identical notes to Australia and New

Zealand respectively63 stating that Japan had no intention to terminate the negotiations

under Article 16(1) of the CCSBT and indicating that Japan was willing to continue to

consult with Australia with a view to having the dispute between the two

Governments resolved in accordance with Article 16(1) of the CCSBT.

(3) A/NZ notes, 23 and 24 June 1999

89. On 23 June 1999 Australia, and on 24 June 1999 New Zealand, sent identical notes to Japan restating their views that Japan’s conduct of an EFP was in breach of

CCSBT, UNCLOS and customary international law.64 These notes identified the conduct of a unilateral EFP as “the central issue in the dispute which was the subject of the preceding negotiations” and expressed the view that the more appropriate means for resolving the dispute would be for A/NZ to commence compulsory dispute settlement procedures under UNCLOS.

(4) Japan’s mediation proposal and A/NZ reply, June 1999

90. On 23 June 1999 Japan proposed mediation under CCSBT to Australia and by an

identical note on 24 June 1999 made the same proposal to New Zealand.65 In these

notes, Japan proposed that the Indian Ocean Tuna Commission (“IOTC”), the Food

and Agriculture Organization, the European Union and the United States could

appropriately serve as mediators. Japan had in fact already raised the matter with each

of them and had secured their general agreement to play a role as a mediator. By

63 Annexes 31 and 32. 64 Annexes 33 and 35.

identical notes dated 30 June 199966 Australia and New Zealand replied that such

mediation could only take place if Japan were to agree to cease its unilateral EFP by 5

July and if the mediation were to be completed by 31 August 1999.

(5) Japan’s notes of 2, 9 and 14 July 1999

91. On 2 July 1999, by identical notes to Australia and New Zealand,67 Japan restated

its view that it had not terminated the negotiations under Article 16(1) of the CCSBT

and said again that as the dispute relates to the implementation of that Convention it

should be resolved in accordance with the relevant provisions of that Convention.

Japan emphasized that it has never recognized the negotiations as an exchange of

views under Article 283(1) of UNCLOS.

92. By further notes to Australia and New Zealand on 9 July 199968 Japan provided a

supplementary explanation of its mediation proposals. It again stressed that the

dispute pertained to the CCSBT and should be resolved in accordance with its

provisions. It said that the appropriate means to use are negotiation and mediation by

experts and scientists in the field of fishery management. It indicated that while sharing

the view that the mediation should be conducted reasonably expeditiously, a deadline

could not be set without both discussing the mediator and the terms of reference. It

mentioned some international organizations that have experience and expertise in

international management of fishery resources. In particular, the Japanese note

recalled the resolution adopted by the IOTC on the subject of SBT adopted in

65 Annexes 34 and 36. 66 Annexes 37 and 38. 67 Annexes 39 and 40. 68 Annexes 41 and 42. 45

December 199869 in which the IOTC called specifically upon the CCSBT Parties to

overcome their difficulties and offered the good offices of various of its officers. Japan

further reiterated the connection between the dispute and the CCSBT, saying that “the

EFP is consistent with all of Japan’s obligations under the 1993 Convention and is

necessary to obtain scientific data to bridge the gap between the views on the stock

condition of SBT of Japan and A/NZ”.

93. On 14 July 1999, again by identical notes to A/NZ,70 Japan restated its view that

its conduct was consistent with the CCSBT. It then went on to propose arbitration

under Article 16(2) of the CCSBT and the Annex thereto. It expressed the view that

arbitration under Annex VII of UNCLOS “lacks jurisdiction ratione materiae for

interpretation and/or implementation of CCSBT under Article 288(2) of UNCLOS.”

Japan observed that if A/NZ could only agree to arbitration, as opposed to negotiation

or mediation, it would be necessary to establish simultaneously a mechanism in which

experts and scientists could resume consultation on a joint EFP and related issues.

F The Commencement of Arbitration Proceedings under UNCLOS by A/NZ, 15 July 1999

94. The identical notes sent to Japan by A/NZ on 15 July 199971 instituted the present

proceedings. They give notice of the submission of the dispute to arbitration. They

point out that the dispute is not confined to the interpretation and application of

CCSBT and assert that the obligations of A/NZ and Japan under UNCLOS and

customary international law “are core elements of the dispute which must be addressed

69 Annex 24. 70 Annexes 43 and 44. 71 Annexes 45 and 46. 46

if the dispute is to be resolved”. But, it may be observed, the notes do not specify the manner in which the terms of UNCLOS have been violated.

95. An important aspect of these notes is the absence of express response in them to

Japan’s proposal for the submission of the dispute to arbitration under Article 16(2) of

CCSBT. A/NZ insisted that the obligations of Japan under UNCLOS and customary international law are “core elements” of the dispute which must be addressed if the dispute is to be resolved, but once again did not specify the conduct of Japan believed to be in breach of UNCLOS and customary international law. Nor, as previously pointed out, do the Statements of Claim72 attached to those notes specify exactly the respects in which Japanese conduct fails to meet UNCLOS requirements other than by recalling the developments in the CCSBT context over the period 1995-1999.

Moreover, during this period, when A/NZ did refer to mediation or arbitration pursuant to CCSBT, Article 16, such as that proposed in the Japanese note, it was always with the condition that Japan abandon its position in the dispute by not conducting an EFP during the dispute resolution process.

96. After the ITLOS Order of 27 August 1999 the diplomatic correspondence relates to procedural details of the arbitration process and matters subsequent to the prescription of provisional measures by ITLOS. It has no relevance to the question of the jurisdiction of the present Tribunal and need not be pursued further now.

Whenever relevant, Japan was careful to indicate that any action it was taking was without prejudice to its position on the question of jurisdiction, and was taken in pursuance of its obligations as a party to UNCLOS.

72 Dossier 3 and 4. 47

VIII ABSENCE OF PROCEEDINGS AGAINST INDONESIA AND THE REPUBLIC OF KOREA

97. According to figures estimated by Australia73 in 1997, Indonesia caught 2241 mt of SBT, ie approximately half of the total catch of 4539 mt by non-parties, and the

ROK caught 1325 mt. Yet despite the fact that Indonesia and the ROK are parties to

UNCLOS and are, therefore, exposed to the initiation of proceedings against them by

A/NZ in the same way as A/NZ have begun proceedings against Japan, no such proceedings have been started. This in spite of the fact that the Indonesian catch is concentrated on the sole known SBT spawning ground and has long been recognized as particularly threatening to the stock. The ROK catch of SBT increased twentyfold in the 1990s; according to the ROK itself, its catch in 1998 was more than 2000 mt.

The fact that A/NZ have not sued Indonesia or the ROK under UNCLOS procedures when they could have done so suggests that what really matters in the present proceedings is that the obligations involved are ones that exist under CCSBT and that

Japan (unlike Indonesia and the ROK) is a party to that convention, not that Japan is allegedly in breach of UNCLOS. If the proceedings genuinely have as their object the implementation of the provisions of UNCLOS which have been invoked by A/NZ, then

Indonesia and the ROK are necessary and proper parties thereto in whose absence the proceedings against Japan cannot properly continue.

IX CONCLUSION OF THIS PART

98. This brings to an end Japan’s statement of what it believes to be the facts necessary to enable the Tribunal to appreciate the nature of the present jurisdictional

73 See the tables of catches by non-parties submitted by Japan as Annex C to its “Response to the request by the President of ITLOS for further elaboration”, 19 August 1999, and Australia’s response of 20 August 1999 to the same request. (Dossier 11 and 12). 48

objections. These facts have been recited not to show that Japan is not in breach of any UNCLOS provisions since that is a matter for the merits phase of the case if it is ever reached, although they do have that incidental effect. The essential purpose of the recital is to demonstrate that what is at issue in the case as brought by A/NZ are matters which relate to the implementation of CCSBT. As shown, even if the complaints made by A/NZ regarding Japan’s compliance with UNCLOS were, contrary to Japan’s contentions, ultimately to be held valid, such a determination would not, and could not, resolve the specific issue that really divides the parties in this case, namely, that of the limits of an acceptable EFP under the CCSBT, or for that matter, questions of TAC and national allocations.

PART THREE GROUNDS OF CHALLENGE TO THE JURISDICTION

X INTRODUCTION—THE DISPUTE ARISES FROM THE CCSBT AND CANNOT PROPERLY BE REFASHIONED AS A DISPUTE THAT ARISES FROM THE UNCLOS

A The True Character of the Dispute

99. A/NZ say that a single set of facts may be relevant to compliance with obligations of more than one treaty—in this case UNCLOS as well as the CCSBT. In abstract terms that may be so. But it inverts the question at issue here. The jurisdiction of the

Arbitral Tribunal in the present dispute does not turn on the range of facts to which it may have regard. It turns on the identification of the dispute. The question is, does the Statement of Claim disclose a legal dispute between the Parties which relates to the interpretation and application of UNCLOS and thus falls within the terms of the

Tribunal’s jurisdiction. This is not a question that is resolved simply by the assertions of the plaintiff States. Reference has already been made to the cogent statement on this point of the ICJ in the Fisheries Jurisdiction (Spain v. Canada) case.74

“It is for the Court itself, while giving particular attention to the formulation of the dispute chosen by the Applicant, to determine on an objective basis the dispute dividing the parties, by examining the position of both parties.”75

The Court continued, at para. 31:

“It will base itself not only on the Application and final submissions, but on diplomatic exchanges, public statements and other pertinent evidence.”

100. The facts demonstrate beyond doubt that the core of this dispute lies in the disagreement concerning, in the words of paragraph 2 of the A/NZ Statements of

Claim, “Japan’s failure to conserve, and to cooperate in the conservation of, the SBT

74 See above, para. 6.

stock, as manifested, inter alia, by its unilateral experimental fishing for SBT in 1998 and 1999”. Neither customary international law nor UNCLOS requires Japan or any other State to proceed with an EFP only with the agreement of the other two States

Parties and within the framework of the CCSBT. The obligation to obtain the consent of the other Parties before initiating an EFP can (if at all) be derived only from the

CCSBT itself. This dispute is and must necessarily be a dispute concerning the interpretation or implementation of the CCSBT and not a dispute concerning the interpretation or application of UNCLOS. It is a dispute concerning the manner in which the three States Parties are co-operating within the framework of the CCSBT.

101. Like Japan, A/NZ have consistently and from the outset treated the dispute as one concerning the implementation of the CCSBT. This is evident both from their actions and from their words. The question of an EFP has been in dispute between

Australia, Japan and New Zealand for more than five of the six years since the adoption by the three States of the CCSBT. The dispute could not have arisen if the

CCSBT had not existed. All of the many negotiations over the years that have sought, and continue to seek, to resolve the dispute have been conducted within the framework of the CCSBT. The final crystallization of the dispute in the Statements of Claim occurred within the context of those CCSBT negotiations.

102. This has been repeatedly recognized by A/NZ, and is evident on the face of the record. For example, as was noted above, Australia concluded its Note dated 31

August 1998 by requesting “urgent consultation with Japan, under Article 16(1) of the

1993 Convention” at the headquarters of the CCSBT; and New Zealand in its Note of

31 August 1998 claimed that Japan’s EFP was “contrary to the objectives of the

75 Para. 30. 51

Convention and the decision-making process of the Commission.”76 Indeed, A/NZ have themselves made clear the limited role that is played by UNCLOS in this dispute.

The Australian Note of 11 September 199877 stated that:

“it is not possible nor was it ever contemplated that matters concerning the 1993 Convention should be isolated from related international obligations concerning the conservation and utilisation of the living resources of the sea . . . . Therefore, it is open to Australia to raise those other international rights and obligations in the dispute settlement process under Article 16.”

Australia does not assert that it may raise the CCSBT in the context of negotiations concerning rights and duties under UNCLOS; it asserts the converse—UNCLOS may be raised in the context of negotiations concerning rights and duties under the CCSBT.

The “other international rights and obligations” asserted are relevant, if at all, only because of their bearing upon the dispute under CCSBT. New Zealand took the same position as Australia, Aide Memoire, 1 October 1998.78

103. With the exception of the passing references in the two A/NZ notes and media releases of 31 August and 1 September 1998,79 right up until the summer of 1999

A/NZ continued to assert explicitly that the dispute was a dispute within the framework of the CCSBT. Reference has been made above to the New Zealand Aide

Memoire of 28 May 199980 in which it is stated that a further unilateral EFP undertaken by Japan “would effectively unilaterally terminate the negotiation process existing under Article 16(1) of the Convention in 1998”, and to the Australian Note of

31 May 1999 which referred to the negotiations under Article 16(1) of the CCSBT and announced that a unilateral Japanese EFP would be regarded by Australia as a

76 See above, para. 68. 77 See above, para. 74 78 See above, para. 76. 79 See above, para. 68. 80 See above, para. 85. 52

unilateral termination of those negotiations. This position was reaffirmed as late as

June 1999, in Notes from Australia, 7 June 1999 and New Zealand, 8 June 1999.81

Even in A/NZ’s Statement of Claim this approach is evident in the account of the facts.

The central complaints concerning Japan’s conduct, set out notably in paragraphs 47 and 48, are a catalogue of events at CCSBT meetings.

104. In the paragraphs in the Statements of Claim detailing the relief sought by A/NZ, however, this approach, logical and consistent, is sharply reversed. The dispute is represented as a dispute arising under UNCLOS, to which the provisions of the

CCSBT are relevant. No sudden development in the facts dictated this change. The factual position remained as it had been throughout the dispute concerning the EFP.

But those facts were refashioned in the presentation to ITLOS of the Statement of

Claim and the request for provisional measures of protection. This rewriting of the history of the dispute, and the revision of its definition, is an artifice. It is a necessary component of the A/NZ attempt to establish a basis for recourse to UNCLOS dispute settlement procedures. But it is not sustained by the facts, by the previous statements of A/NZ, or by the previous actions of A/NZ. Nor, indeed, is it sustained by the substance of A/NZ’s claims as they stand before the present Tribunal.

105. As can be seen from the prayer for relief in A/NZ’s Statement of Claim, the substantial part of the requests there made, though formally asserted to relate to

UNCLOS, depends in substance upon allegations of breaches of the CCSBT. There are general references to UNCLOS in paragraph 69(1), subparagraphs (a), (d) and (e); but all the substantial allegations concern the CCSBT. Thus, subparagraph (b) turns on national allocations previously agreed by the CCSBT Commission; and

81 See above, para. 87. 53

subparagraph (c) refers to the catch of additional southern bluefin tuna in the course of an EFP—another matter that has manifestly been regarded by all the parties as firmly located within the framework of the CCSBT.

106. The same is true of the prayer for relief in paragraph 69 (2) of the Statement of

Claim dealing with the specific steps to be taken by Japan. Here, reference is made:

(a) to experimental fishing for southern bluefin tuna;

(b) to negotiations “including through the Commission” for purposes

identical in content with the CCSBT purposes;

entirely dependent upon the CCSBT; and

(d) to Japan’s “national allocation as last agreed in the Commission”, i.e.,

within the framework of the CCSBT.

These requests are only intelligible within the framework of the CCSBT.

107. The remaining paragraphs in the prayer for relief in the Statement of Claim

(paragraphs 69(1) (a), (d) and (e)) seek no relief relating to the future conduct of

Japan. They seek only retrospective determinations that Japan has breached general obligations of co-operation and conservation under UNCLOS. The only substantive relief sought by A/NZ relates to Japan’s future conduct within the framework of the

CCSBT.

108. Thus, as A/NZ themselves do not attempt to conceal, there is no way in which their case can be given substance other than in terms of allegations of breach of the

CCSBT. The CCSBT covers all the complaints now advanced by A/NZ, and there is neither any need nor any entitlement for A/NZ to resort to UNCLOS in support of

claims which properly arise, if they arise at all, under the CCSBT. The core of the

dispute lies indisputably in the CCSBT.

109. This point is of the utmost importance, because it relates to the most fundamental

principles governing the jurisdiction of this Tribunal. In order to succeed, it is

necessary for A/NZ to demonstrate that the present dispute between them and Japan is

one concerning the interpretation or application of UNCLOS. Their difficulty is that

there is no genuine dispute that can be so described.

B Judicial Identification of the Real Dispute

110. The existence of a “dispute” is a conditio sine qua non for the handling of this

matter by this Tribunal. In the Nuclear Tests Cases (Australia v. France and New

Zealand v. France), the ICJ stated:

“The Court, as a court of law, is called upon to resolve existing disputes between States. Thus the existence of a dispute is the primary condition for the Court to exercise its judicial function; it is not sufficient for one party to assert that there is a dispute, since “whether there exists an international dispute is a matter for objective determination” by the Court (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase), Advisory Opinion, I.C.J. Reports 1950, p. 74).”82

111. No State can decide for itself that another State is “in dispute” with it, so as to

compel that other State to submit to certain dispute settlement procedures. As the ICJ

said in the South West Africa Cases:

“In other words it is not sufficient for one party to a contentious case to assert that a dispute exists with the other party. A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non•existence. Nor is it adequate to show that the interests of the two parties to such a case are in conflict. It must be shown that the claim of one party is positively opposed by the other.”83

82 ICJ Reports 1974, at p. 270-271, para. 55 and p. 476, para. 58. Emphasis supplied. 83 Preliminary Objections, ICJ Reports 1962, p. 328. Emphasis supplied. 55

112. The artificial reformulation and description of the material issue under the

CCSBT in terms of the provisions of UNCLOS is not sufficient to convert this matter into a genuine dispute under the latter. One may recall the words of Judge Jennings in his Opinion (albeit dissenting) in the Lockerbie Case, Libya v. U.K.:

“The real dispute is one about the meaning and applicability of the Charter of the United Nations, about Articles 25 and 103 in particular and about the meaning and application of Security Council resolutions 731, 748 and 833. The attempt to tack this “dispute” onto Article 14, paragraph 1, of the Convention, via Article 7, is an artifice that really ought not to beguile this Court.”84

113. The key question is, what is the dispute really about? What is the core, or center of gravity, of the dispute? It is not enough for A/NZ to point to a slender connection between the facts of the claim and the treaty invoked.85 As the International Court put it in 1956 in the case of the ILO Administrative Tribunal:

“It is necessary that the complaint should indicate some genuine relationship between the complaint and the provisions invoked . . .

In order to determine the jurisdiction of the Tribunal, it is necessary to ascertain whether the terms and the provisions invoked appear to have a substantial and not merely an artificial connexion with the refusal to renew the contracts.”86

114. There is no disagreement between the Parties concerning the applicability of this legal principle. A/NZ maintained precisely this position in their Notifications to Japan dated 15 July 1999.87 There they asserted that they had decided to commence proceedings under UNCLOS because “the obligations of Japan under the 1982

Convention and under customary international law are core elements of the current

84 Preliminary Objections, ICJ Reports 1998, p. 102. Emphasis supplied. 85 See Ambatielos Case, Merits: Obligation to Arbitrate, ICJ Reports 1953, p. 18. 86 ICJ Reports 1956, p. 89. 87 Annexes 45 and 46. 56

dispute”.88 They thus agree that the “core elements” of the dispute referred to in the document formally instituting these proceedings are pertinent to identifying the jurisdictional nexus. All the Parties are agreed on that. The facts, however, show that the core of the dispute is located within the CCSBT, and not within the UNCLOS.

Indeed, as will be shown, far from the core of this dispute lying within the UNCLOS, there is no real dispute whatever between the parties concerning the provisions of the

UNCLOS.

115. The references in the Statements of Claim to the UNCLOS are mere devices by which A/NZ seek to remove the dispute from the settlement procedures to which they had agreed in Article 16 of the CCSBT. The Statement of Claim attempts to evade the jurisdictional limitations of the CCSBT, and artificially to reformulate the dispute in order to bring it within the dispute settlement principles of Part XV, section 2, of

UNCLOS. Claims presented in this way constitute an abuse of legal process and are not well founded. Indeed, the Statement of Claim would violate the obligations laid down in Article 300 of UNCLOS, on which A/NZ purport to rely, to act in good faith and not to act in a manner that constitutes an abuse of right.

XI THE CCSBT IS A LEX SPECIALIS

A The Relationship of CCSBT and UNCLOS

116. The vital feature of this case that has been disregarded by A/NZ is that the relationship between UNCLOS and the CCSBT is that UNCLOS is a lex generalis and the CCSBT is a lex specialis. The provisions of UNCLOS and the CCSBT have already been described in paragraphs 22-36 and compel the conclusion that the

88 See para. 94 above. Emphasis supplied. 57

CCSBT is a lex specialis. As will be seen, the law dictates that in such circumstances the lex specialis prevails over the lex generalis; and it is to the former that this

Tribunal must look for the limits of its jurisdiction.

117. The Preamble to the CCSBT recalls that “Australia, Japan and New Zealand have

already taken certain measures for the conservation and management of southern

bluefin tuna.” It refers to “the rights and obligations of the Parties under relevant

principles of international law” and to the need to “cooperate to ensure the

conservation and optimum utilisation of southern bluefin tuna;” and it notes, “the

adoption of the United Nations Convention on the Law of the Sea in 1982.” The

generality of this language is not accidental. The obligations of Australia, Japan and

New Zealand under UNCLOS are remarkably general in nature, being simple

obligations to cooperate with other States in the conservation and management of

highly migratory and high seas fisheries.

118. The CCSBT is one product of the recognition by all three of its Parties of their

obligations under UNCLOS to cooperate in the development of practical arrangements

for the conservation and management of highly migratory and high seas fisheries. The

CCSBT is significant in two respects. First, it is in itself a fulfillment by the three

States Parties to it of the duty to cooperate in relation to the southern bluefin tuna

fishery. Second, by laying down, in a legally binding instrument, the procedures by

which the Parties will implement their commitments to cooperate, the CCSBT

particularized their obligations in relation to co-operation regarding southern bluefin tuna.

119. This is in accordance with the scheme of UNCLOS which has in a number of respects the character of an “umbrella” agreement.89 Its effectiveness is dependent upon the conclusion of further, specific agreements by the States Parties to it, in order to give substance to the obligations of the most general kind that it imposes upon

States at several points. For example, the obligation to agree upon equitable solutions to disputes over the delimitation of the EEZ or of the continental shelf is discharged by the making of separate agreements between the States concerned (UNCLOS, Articles

74, 83). Once those agreements are made, it is they, and not the general obligations of

Articles 74 and 83, that govern the relationship between the parties to them. So, too, the right of access of land-locked States to and from the sea (UNCLOS Article 125) is to be implemented by specific agreements between the land-locked States and neighboring “transit” States. Those agreements determine the nature and extent of rights of transit. Similarly, the general obligations imposed upon States to take measures to protect the marine environment (UNCLOS Articles 192, 194, 197, 211) are implemented by the adoption of international agreements; and those agreements then embody the obligations of States and supplant the general obligations that they implement.

120. Each of the detailed implementing agreements constitutes a lex specialis; and by virtue of a general principle of law accepted in the international legal system it is to the lex specialis, and not to the general provisions to which the lex specialis gives substance, that one must turn in order to determine the obligations of the Parties. The

CCSBT stands as lex specialis in relation to the lex generalis, UNCLOS.

89 This description of UNCLOS was used by the IMO to convey the idea that many of its provisions, being of a general kind, can only be implemented through specific operative provisions in other international agreements. See Implications on the Entry into Force of UNCLOS for the International

B Lex Specialis in International Law

121. The role of the lex specialis is firmly established in international law. The

principle that the specific prevails over the general (“lex specialis generalibus

derogat”) is, for example, to be found in the practice of the ICJ. In cases where the

parties have created such special rules, the International Court has applied them. In

the Rights of Passage case, for instance, the Court said (in relation to a rule of

customary international law as a rule of lex specialis) that where it

“finds a practice clearly established between two States which was accepted by the Parties as governing relations between them, the Court must attribute decisive effect to that practice for the purpose of determining their specific rights and obligations. Such a particular practice must prevail over any general rules.”90

122. The principle extends not only to the substantive provisions of the lex specialis,

but also to the procedural provisions, including those relating to the settlement of

disputes. Thus, in the Mavrommatis Palestine Concessions (Jurisdiction) case the

litigating States were parties to two instruments, the Palestine Mandate of 24 July

1922, which provided for the reference to the Permanent Court of International Justice

of disputes not settled by negotiation, and Protocol XII of the Treaty of Lausanne of

24 July 1923. The United Kingdom argued that the Lausanne Protocol, which

contained no provision conferring jurisdiction on the Permanent Court, excluded the

operation of the Palestine Mandate in that case. The Court held that

“The Protocol . . . deals specifically and in explicit terms with concessions such as those [at issue], whereas . . . the Palestine Mandate deals with them only implicitly. Furthermore it is more recent in date than the Mandate. All the conditions therefore are fulfilled which might make the clauses of the Protocol overrule those of the mandate. . . . The fact that [the Mandate] only refers to the Protocol in general terms, and that the Protocol is more recent in date than

Maritime Organization, IMO Doc. LEG/MISC/2, 1996. 90 ICJ Reports 1960, p. 6 at para. 44. Emphasis supplied. See also the Tunisia/Libya Continental Shelf case, ICJ Reports 1982, p. 18 at para. 38. 60

the Mandate, does not justify the conclusion that the Protocol would only be applicable in Palestine in so far as it is compatible with the Mandate. On the contrary, in cases of doubt, the Protocol, being a special and more recent agreement, should prevail.”91

123. The principle is, in truth, a general principle of law recognized in all legal systems, and it was cited as an example of such in the drafting of Article 38 of the

Statute of the Permanent Court of International Justice.92 It follows that if the lex specialis contains dispute settlement provisions applicable to its content, the lex specialis prevails over any dispute settlement provisions in the lex generalis. This, as will be shown, is what the CCSBT has done in relation to the UNCLOS.

91 PCIJ, Ser. A., No. 2, at pp. 30-31. Another example is to be found in the case concerning the European Commission of the Danube, PCIJ Ser. B, No. 14, at 23: “(the Definitive Statute) as the latest and most comprehensive statement of the law relating to the internationalized Danube, . . . preeminently represents the law now in force on that subject.” Similarly, the European Court of Human Rights, in the case of De Jong, Baljet and Van Den Brink considered an argument that the same facts that underlay a complaint under Article 5(4) of the European Convention on Human Rights (deprivation of liberty) also constituted a violation of Article 13 of the Convention(right to an effective remedy for violations of the Convention). The Court and the parties accepted the ruling of the European Commission on Human Rights that “there was no call to examine the case under Article 13 in view of the conclusion reached under the lex specialis of Article 5(4).” 78 ILR 225 at 251. The Iran-United States Claims Tribunal has referred to “a lex specialis, in the form of the Treaty of Amity, which in principle prevails over general rules.” INA Corporation v. Iran, (1985), 75 ILR 596 at 602. In the face of the lex specialis the lex generalis recedes into the background. It becomes no more than a part of the context of the development of the lex specialis, which alone governs relations between the Parties. The United Nations Human Rights Committee has applied the principle regularly. For instance, in the case of Fanali v. Italy, Mr. Fanali was unable to rely upon article 14(5) of the International Covenant on Civil and Political Rights (“Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”) because of the terms of the Italian reservation to Article 14(5). Mr. Fanali then sought to rely upon Article 2(3) of the Covenant, which obliges States Parties in general terms to provide effective legal remedies for violations of the Covenant. The Committee held that he could not do so: “(Article 14(5)) is a form of lex specialis besides which it would have no meaning to apply the general right in Article 2(3).” (78 ILR 54 at 62). The principle has also been applied by municipal courts including cases with an international element. See, for example, Military Prosecutor v Al Nassar, (Military Court of Israel, 1969), 48 ILR 486 at 491: “. . . another legal rule prevails with us: lex specialis derogat legi generali. Military legislation is a very specific kind of legislation and in this case therefore takes precedence over general legislation. What is more, this specific legislation is comprehensive and indicates modes of procedure and rules of evidence.”; Mokotso v. King Moshoeshoe II, (Lesotho High Court, 1988), 90 ILR 427: “The maxim posteriora derogant prioribus must apply. Indeed, the order being subsequent in time, the maxim generalia specialibus non derogant must also apply a fortiori.” 92 See Bin Cheng, General Principles of International Law, (1987), pp. 25-26. 61

124. These are not isolated decisions made only by tribunals. The consistency of the practice supporting the principle, and the consistency of the principle with the corpus of international law, is evidenced by the analysis of the matter by distinguished jurists.

Sir Gerald Fitzmaurice, for instance, wrote concerning the principle generalia specialibus non derogant:

“The ‘generalia’ principle can have a number of applications. It does not merely involve that general provisions do not derogate from specific ones, but also, or perhaps as an alternative method of statement, that a matter governed by a specific provision, dealing with it as such, is thereby taken out of the scope of a general provision dealing with the category of subject to which that matter belongs, and which therefore might otherwise govern it as part of that category.”93

The lex specialis, as Sir Gerald so clearly explains, eclipses the lex generalis. The lex generalis ceases to govern matters governed by the lex specialis.

125. Sir Gerald is by no means alone in his support of the principle. Among those who have approved it may be mentioned Lord McNair: where treaties are made by the same parties on different dates and “one treaty contains general provisions and the other special provisions in pari materia, . . . the factor illustrated by the maxim generalia specialibus non derogant comes into play . . .”94 The rule has been stated thus in Oppenheim:95 “Generalia specialibus non derogant is a maxim which has sometimes been applied in order to resolve apparent conflicts between two differing and potentially applicable rules.” Similarly, O’Connell observed:96

“There would appear, therefore, to be two categories of general principles, those which in virtue of their own cogency are basic to legal systems generally, and hence part of the jus gentium strictly speaking, and those which are extended only by analogy or by other judicial processes from one or a few

93 The Law and Procedure of the International Court of Justice 1951-4: Treaty Interpretation and Other Treaty Points, BYIL, Vol. XXXIII (1957), p. 236. (Emphasis in original). 94 The Law of Treaties, 1961, p. 219. 95 Sir R. Jennings and Sir A. Watts, Oppenheim’s International Law, 9th ed., 1992, p. 1280. 96 D. P. O’Connell, International Law (1970), pp. 12-13. 62

systems of municipal law because they offer a just, but not the only solution. As examples of the first one may offer . . . lex specialis derogat generali.”.

No cases are known of jurists disputing the principle.

126. By particularizing the general obligations of the Parties in relation to co- operation over southern bluefin tuna, the CCSBT constitutes an agreed statement of the manner in which the States Parties to it are to comply with, and thus displaces, their more general obligations. The CCSBT is a lex specialis; and it is to the CCSBT, and not to any other rules and principles concerning co-operation over high seas fisheries, that the Tribunal must turn in order to determine whether Japan has fulfilled its duties to cooperate.

C Lex Specialis and Successive Treaties

127. A further consideration, closely related to the lex specialis character of the

CCSBT, is that of the relationship of successive treaties on the same subject-matter.

The Vienna Convention on the Law of Treaties, Article 30, provides in part as follows:

“. . . 2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between the States Parties to both treaties the same rule applies as in paragraph 3. . . . .”

There can be no doubt that UNCLOS is an “earlier” treaty than CCSBT: the former was adopted amidst universal publicity in 1982, the latter in 1993. The Parties expressly noted the temporal priority of UNCLOS in the Preamble to the CCSBT:

“Noting the adoption of UNCLOS in 1982”.

128. The substantive provisions of UNCLOS invoked by A/NZ clearly foresee the

conclusion of subsequent treaties on the same subject matter. Moreover, Article 311

of UNCLOS, which deals with “Relation to other conventions and international

agreements”, provides in paragraph 5 that “this Article does not affect international

agreements expressly permitted or preserved by other articles of this Convention.”

129. For their part, the Parties to the CCSBT obviously had in mind that their

Convention was adopted in implementation of the requirements of UNCLOS and

general international law. Thus the Preamble to the CCSBT contains the following

paragraphs:

“Paying due regard to the rights and obligations of the Parties under relevant provisions of international law; Noting the adoption of the United Nations Convention on the Law of the Sea in 1982.”

130. The substantive conclusion is, therefore, that as the later of two successive

treaties on the same subject-matter, CCSBT replaces or prevails over UNCLOS. The

CCSBT has, in short, supplanted UNCLOS to the extent that it particularizes the

obligations of the Parties in relation to conservation and co-operation concerning

southern bluefin tuna fisheries. Those are the obligations with which this case is

concerned.

131. This, as the practice described above demonstrates, is true both of the substantive provisions of the CCSBT and of its procedural provisions, including Article 16.

Therefore, the CCSBT excludes further recourse to UNCLOS in relation to those matters. This conclusion serves to confirm the argument that reliance by the

Applicants upon UNCLOS is an artificial and improper attempt to change the nature of 64

the dispute. It also entails the consequence that the Parties to the present dispute must

follow the dispute settlement procedure laid down in the 1993 CCSBT, and not that in

UNCLOS.

XII THE CCSBT STIPULATES THE DISPUTE SETTLEMENT PROCEDURE THAT ITS PARTIES MUST FOLLOW

A The CCSBT Provisions

132. When the Parties negotiated the text of the CCSBT, they envisaged that disputes

concerning interpretation or implementation of the Convention might arise. They

agreed between themselves how such disputes would be dealt with. In Article 16 of the CCSBT they set out that agreed procedure; and they are as much bound by Article

16 as by the other provisions of the CCSBT. The terms of Article 16 are set out above, at the end of paragraph 47.

133. A/NZ have not followed the procedure to which they agreed in the CCSBT.

134. In the first place it is necessary to recall that Article 8(2)(a) of the CCSBT states

as one of the duties of the Commission: “interpretation or implementation of the

Convention or measures adopted pursuant to it.” There is no evidence that A/NZ ever

referred to the Commission the questions of interpretation and implementation of

CCSBT that have arisen in the present case.

135. In June and July 1999 the Parties did discuss the possibility of mediation or

arbitration of the dispute under the CCSBT provisions. While having a clear

preference for negotiation, Japan was prepared to accept reference of legal (but not

scientific or technical) questions to arbitration in accordance with the CCSBT

provisions.97 A/NZ, however, insisted that Japan accede to their position on the merits by making cessation of the EFP an indispensable precondition of either mediation or arbitration pursuant to the CCSBT.

136. The possibility of agreement upon arbitration or other means of settling disputes, as set out in CCSBT Article 16(1), does not exhaust the CCSBT dispute settlement procedure. Article 16(2) of CCSBT goes on to provide that if the Parties do not agree upon the means of resolving the dispute, it shall be referred to the International Court of Justice or to arbitration “with the consent in each case of all parties to the dispute.”

Any reference of a dispute to arbitration or to the International Court under CCSBT

Article 16(2) must be agreed by the disputing States, and there has been no such agreement in this case. In circumstances where there is no such consent Article 16(2) stipulates that the Parties remain bound to continue to seek to resolve the dispute by peaceful means. That completes the dispute settlement system under the CCSBT.

B The CCSBT Dispute Settlement Provisions as One of Many Examples of Post- UNCLOS Treaties Not Adopting UNCLOS Procedures

137. The procedure set out in Article 16 of the CCSBT is by no means unique.

Indeed, it was borrowed from Article 25 of the 1980 Convention on the Conservation of Antarctic Marine Living Resources, itself materially identical to Article XI of the

1959 Antarctic Treaty,98 on the proposal of New Zealand. The procedure is limited and self-evidently comprehensive. It contemplates the possibility that consultations between States under paragraph (1) will not result in the settlement of the dispute; and it stipulates, in paragraph (2), what is to happen in that event. Paragraph (2) could

97 See above, paras. 91-93. 98 See above, para. 3. 66

have stipulated that the dispute could be referred at the instance of any Party to

arbitration, or to the ICJ, or to the ITLOS, or to an UNCLOS Annex VII tribunal. It

could have provided for compulsory mediation. It could have made whatever

provision the Parties wished for a compulsory dispute settlement procedure to operate

if consultations between the parties failed to lead to the resolution of a dispute. But it

did not.

138. Had the Parties intended that the dispute settlement procedure set out in Article

16 of the CCSBT should be supplemented by the possibility of recourse to the

UNCLOS tribunals, they would have said so.99 Several important points emerge from

a comparison of Article 16 of the CCSBT with other treaties concerning the Law of

the Sea concluded subsequent to the adoption of UNCLOS in 1982.100

139. First, in several treaties it is quite plain that the parties have drafted

comprehensive and self-contained dispute settlement systems, intended to stand in

place of the UNCLOS provisions. For instance, the 1992 Paris Convention for the

Protection of the Marine Environment of the North-East Atlantic101 sets out, in Article

32, detailed provisions for the settlement of disputes. It stipulates that any disputes

relating to the interpretation or application of the Convention that cannot be settled by

the Contracting Parties concerned “shall at the request of any of those Contracting

Parties be submitted to arbitration under the conditions laid down in this Article”

(Article 32(1)). The Article then proceeds to set out detailed rules concerning the

99 See also para. 144 below. 100 Annex 47 lists and summarizes the dispute resolution mechanisms of a large number of treaties concluded on matters relating to subjects covered by UNCLOS and having a lex specialis character. Research is still continuing and Japan reserves the right to add to this Annex after first giving notice to A/NZ. The following text discusses in greater depth certain of those treaties that are particularly relevant in this case. 101 32 ILM 1069 (1993). See also Annex 47. 67

constitution and composition of the tribunal, the law to be applied by the tribunal, the

taking of decisions by the tribunal, intervention in proceedings by third States, and the

binding effect of awards. These provisions are quite different from the UNCLOS Part

XV procedures. There can be no doubt that the Parties intended that those specific

provisions, and not UNCLOS Part XV, should define their legal relations. It cannot be

supposed for one moment that the Parties intended, in Article 32, to establish a dispute settlement system which could simply be ignored by any Party that chose to describe a complaint about the conduct of another State Party not as a violation of the Paris

Convention but rather as a violation of the general duty under UNCLOS Article 197

(to which the Paris Convention Preamble refers) for example, or UNCLOS Article 192 or 194, to take measures necessary to protect the marine environment.

140. Other contemporary treaties included much simpler provisions. Thus, Article 10

of the 1997 Australia-Indonesia Treaty Establishing an Exclusive Economic Zone

Boundary and Certain Seabed Boundaries provides only that “[a]ny dispute between

the two Parties arising out of the interpretation or implementation of this Treaty shall

be settled peacefully by consultation or negotiation”.102 The same is true of the

Australia-Papua New Guinea Treaty, which was ratified in 1978, concerning

Sovereignty and Maritime Boundaries in the Area between the two Countries, Article

29.103 See also Article XII, 1996 Agreement on the Conservation of Cetaceans of the

Black Sea, Mediterranean Sea and Contiguous Atlantic Oceans,104 which provides only

that “any dispute between the two Parties arising out of the interpretation or

implementation of this Treaty shall be settled peacefully by consultation or

102 36 ILM 1053 (1997). 103 See Charney and Alexander, International Maritime Boundaries (1993), vol I., p. 937, at p. 959. 104 36 ILM 777 (1997). 68

negotiation”. It can hardly be supposed that the Parties to treaties such as these

intended that any dispute might be referred to the compulsory procedures of UNCLOS

Part XV by the expedient of describing the dispute in terms of general obligations in

UNCLOS. Again, the intent to establish a lex specialis is manifest.

141. Second, some contemporary treaties indicate the intention of the parties that

UNCLOS provisions should continue to apply between them in relation to matters

covered by the treaty. The 1992 Niue Treaty on Co-operation in Fisheries Surveillance and Law Enforcement in the South Pacific Region105 stipulates, in Article II(1), that

“Rights and obligations under this Treaty shall apply as between the Parties in addition to any right or obligation concerning a similar matter applicable to a Party under any other Treaty.” The CCSBT, however, contains no indication whatever that the Parties wished to take steps to ensure that the UNCLOS provisions were not eclipsed by the provisions of the CCSBT in accordance with the principle lex specialis generalibus derogat.

142. Third, it is clear that the fact that the UNCLOS had not entered into force by the date of the conclusion of the CCSBT in 1993 would have been no obstacle to the inclusion of a provision for the submission of disputes arising under it to the UNCLOS procedures. The 1993 Agreement to Promote Compliance with International

Conservation and Management Measures by Fishing Vessels on the High Seas106 has a dispute settlement procedure broadly similar to that in the CCSBT. The “Compliance”

Agreement, however, refers explicitly to the possibility of submission of disputes to the

ITLOS. Article 9 (Settlement of Disputes) of that Agreement reads as follows:

105 32 ILM 136 (1993). 106 33 ILM 968 (1994). 69

“1. Any Party may seek consultations with any other Party or Parties on any dispute with regard to the interpretation or application of the provisions of this Agreement with a view to reaching a mutually satisfactory solution as soon as possible. 2. In the event that the dispute is not resolved through these consultations within a reasonable period of time, the Parties in question shall consult among themselves as soon as possible with a view to having the dispute settled by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. 3. Any dispute of this character not so resolved shall, with the consent of all Parties to the dispute, be referred for settlement to the International Court of Justice, to the International Tribunal for the Law of the Sea upon entry into force of the 1982 United Nations Convention on the Law of the Sea or to arbitration. In the case of failure to reach agreement on referral to the International Court of Justice, to the International Tribunal for the Law of the Sea or to arbitration, the Parties shall continue to consult and cooperate with a view to reaching settlement of the dispute in accordance with the rules of international law relating to the conservation of living marine resources.”

The CCSBT was adopted in the same year as the “Compliance” Agreement. The

Parties to the CCSBT must have been well aware of the existence of the UNCLOS and the ITLOS; but they decided to adopt a dispute settlement system that included no reference to the UNCLOS tribunals.

143. Perhaps the most instructive comparison is with the 1995 Agreement for the

Implementation of the Provisions of the United Nations Convention on the Law of the

Sea of 10 December 1982 Relating to the Conservation and Management of Straddling

Fish Stocks and Highly Migratory Fish Stocks (the “Straddling Stocks Agreement”).107

The Straddling Stocks Agreement devotes an entire Part (Part VII; Articles 27-32) to the “Peaceful Settlement of Disputes”. There are, for instance, provisions on the general obligation to settle disputes peacefully, on the jurisdiction of tribunals, and on provisional measures. This is another clear example of a dispute settlement procedure that operates, on the face of it, as a lex specialis, displacing the UNCLOS Part XV procedures. But in the case of the Straddling Stocks Agreement the Parties have

chosen to modify the position. They have provided, explicitly and in detail, in Articles

30-32, for the continued application of the UNCLOS Part XV procedures. Article

30(1) states that “The provisions relating to the settlement of disputes set out in Part

XV of the [1982] Convention apply mutatis mutandis to any dispute between States

Parties to this Agreement concerning the interpretation or application of this

Agreement, whether or not they are also Parties to the [1982] Convention.” Those

provisions are a good example of what a treaty provision preserving the effect of

UNCLOS Part XV might be expected to look like. Nothing of the kind appears in the

CCSBT.

144. When the similarities and contrasts between the CCSBT and other contemporary

treaties on the Law of the Sea are considered it becomes plain that the Parties to the

CCSBT created an instrument that operates as lex specialis and excludes the

application of the UNCLOS rules. If the Applicants had wished to maintain the force

of the UNCLOS rules after the adoption of the CCSBT, they could and would have

inserted a provision to that effect in the CCSBT. There is no such provision; and the

Applicants cannot re-write the CCSBT now. The lex specialis must be observed. The

Parties are currently under a duty to seek a settlement of the dispute by peaceful means

of their own choosing. Nothing in the CCSBT entitles the Applicants to compel Japan

to submit the matter to an UNCLOS Part XV tribunal.

145. There is a general principle of considerable importance at stake. If the dispute

settlement procedure of the CCSBT as a lex specialis is not observed, the whole

structure of UNCLOS, an umbrella treaty, is distorted. As stated, much of UNCLOS

is limited to the most general statements of basic principle. Those principles are to be

107 34 ILM 1542 (1995). 71

given real content by the conclusion of specific global, regional, sub-regional and

bilateral agreements, an aspect that is particularly prominent in relation to fishing and

the conservation of the living resources of the seas, both in the EEZs of coastal States

and on the high seas. That relationship between UNCLOS and specific agreements

was established in that form precisely because it was neither possible nor desirable to

set out in UNCLOS itself detailed rules for all the world’s oceans and all the world’s

fishing resources. The Conference deliberately decided to allow flexibility and

divergence among the solutions adopted for different maritime problems. That

explains the wide and varied range of regional and sub-regional fisheries and pollution

agreements and, as regards fisheries, species oriented agreements also, these latter

particularly important for highly migratory species. It is the lex specialis principle that

underpins the coexistence of these distinct regimes, with each other and with the

UNCLOS. The principle secures both the aim of flexibility, and also the fundamental

principle of pacta sunt servanda: the parties to these agreements must, after all, be

entitled to rely upon the agreements that they have made. The CCSBT, as both lex

specialis and lex posterior, must be allowed to stand. That its dispute settlement provisions do not by themselves lead to compulsory jurisdiction is no reason for

overriding them. They are similar to those in other treaties; no doubt because that is

what the Parties intended them to be.108

108 One distinguished lawyer, with a long and close involvement with the drafting of UNCLOS (and now a Judge on the ITLOS), has remarked upon States’ reluctance to raise in a judicial forum disputes arising from an alleged failure to cooperate. He wrote: “the simple duty to seek agreement or to cooperate over the adoption of conservation measures, laid down in Article 63 for straddling stocks and in Article 64 for highly migratory species, left open the question of what should happen when efforts to cooperate had failed to produce agreement. A proposal for arbitration, advanced by some coastal States at a late stage of the Conference, met with opposition from distant-water fishing States and was withdrawn”. D. H. Anderson, “The Straddling Stocks Agreement of 1995—an Initial Assessment”, I.C.L.Q., Vol. 45 (1996), p. 463, at p. 464. 72

C UNCLOS Part XV Does Not Permit the Submission of the Present Dispute to an Annex VII Tribunal

146. The argument above has been directed to two points. First, the dispute is, as a matter of fact, a dispute arising under the CCSBT and not under the UNCLOS; and second, the CCSBT in any event operates as a matter of law as the lex specialis, precluding recourse to the substantive rules or dispute settlement procedures of the

UNCLOS. The paragraphs that follow demonstrate that the principle of the lex specialis has been deliberately preserved in Part XV of the UNCLOS itself.

147. The drafting history of UNCLOS evidences a widespread concern that the procedures of Part XV should not be applied in cases where the parties to a dispute have agreed to some other procedure for the settlement of disputes through other agreements covering any aspect of the subject matter covered by UNCLOS. In the words of the Australian delegate when discussing such cases at the fourth session of the UNCLOS III conference,

“The method of settlement should be a matter for the parties themselves, and no element of compulsory jurisdiction or settlement should be involved.”109

148. Part XV was drafted in such a way as to preserve the right of States to settle their disputes by means of their own choosing. The key provisions are Articles 279 and 288.

149. Article 288(1) gives an UNCLOS Part XV tribunal jurisdiction “over any dispute concerning the interpretation or application” of UNCLOS itself. As indicated above, any attempt to bring A/NZ’s claims within the scope of this provision is an abuse of

109 Third United Nations Conference on the Law of the Sea , Fourth Session (1976), New York, Official Records, Vol. V, p. 9.•10. See also Argentina (ibid., p.18), Japan (ibid., p. 27), Philippines (ibid., p.42). See also R. Ranjeva, “Settlement of Disputes”, in Dupuy•Vignes, A Handbook on the

legal process. Article 288, paragraph 2, however, additionally gives an UNCLOS

tribunal jurisdiction “over any dispute concerning the interpretation or application of an

international agreement related to the purposes of this Convention [UNCLOS], which

is submitted to it in accordance with the agreement.” (Such agreements will be referred to as “related agreements”.) It is this paragraph that preserves the application of the principle of the lex specialis. Where States conclude an agreement separate from, but related to, UNCLOS, there is no presumption that the related agreement is subject to the Part XV compulsory procedures. On the contrary, only the specific agreement of the Parties to the dispute can confer on an UNCLOS Part XV tribunal jurisdiction over a related agreement. There is no such agreement in the CCSBT. Japan has not agreed to the submission of the present case to this Tribunal.

150. Moreover, Article 288(2) must be read negatively as well as positively. Its clear meaning is to deny to the Arbitral Tribunal jurisdiction over “related agreement”

disputes which are submitted to it otherwise than in accordance with the related

agreement. Far from the Parties having agreed to submit disputes arising under the

CCSBT to the UNCLOS procedures, the Parties agreed that such disputes would be

subject to the procedures set out in Article 16 of the CCSBT. That provision

manifestly evinces an intention that disputes arising under the CCSBT should be dealt

within the manner there contemplated—and that is not the manner which A/NZ are

pursuing in the present proceedings.

151. Japan observes that there are numerous treaties on matters that fall within the scope of UNCLOS, but which nevertheless have their own dispute settlement provisions which negate any intention that the disputes are subject to the dispute

New Law of the Sea, Vol. 2, 1991, Ch. 25, pp. 1384•1385. 74

settlement provisions of Part XV of the UNCLOS.110 For example, as was noted above, the 1992 Paris Convention for the Protection of the Marine Environment of the

North-East Atlantic111 provides in Article 32 for the settlement of disputes by inquiry or conciliation within the Convention’s Commission, failing which the dispute is to be submitted to arbitration at the request of a party. It cannot be supposed that all such provisions on dispute settlement have been overridden by the terms of Part XV of the

UNCLOS. Nor could it have been the intention of the drafters of the UNCLOS to override such provisions. The terms of Article 288(2) clearly require that legal obligations to submit disputes to non-UNCLOS procedures should be honored. In the absence of the consent of Japan to submit this dispute arising from the CCSBT to this

Arbitral Tribunal, the Tribunal lacks jurisdiction over the dispute.

152. That conclusion follows from the role of the CCSBT as lex specialis. There are, however, further reasons why, according to UNCLOS Part XV, the present dispute cannot be brought before this Tribunal.

153. A/NZ seek to invoke the jurisdiction of an arbitral tribunal under UNCLOS

Annex VII. The fundamental flaw in their argument is the treatment of disputes under the CCSBT as if they were disputes under UNCLOS, and the related attempt to ignore the dispute settlement provisions of the CCSBT. But the provisions of UNCLOS Part

XV would in any event preclude the exercise of jurisdiction by an Annex VII tribunal.

154. Even if there were some dispute under the UNCLOS and the operation of the lex specialis principle were for some reason suspended (both of which propositions Japan

110 See Annex 47. 111 32 ILM 1069 (1993). 75

of course denies), A/NZ would still be unable to satisfy the procedural requirements of

UNCLOS Part XV.

155. Article 281 provides that the provisions of Part XV—both Section 1 (“General

Provisions”) and Section 2 (“Compulsory Procedures”)—apply only where no settlement has been reached by recourse to means of the Parties’ own choice and the agreement between the Parties does not exclude any further procedure. The chosen means in this dispute are those in the CCSBT Article 16. That provision obliges the

Parties to negotiate in order to decide upon a dispute settlement process. (A similar obligation to consult for this purpose is contained in UNCLOS Articles 279 and 283.)

Furthermore, Article 286 provides that a dispute may become subject to Part XV,

Section 2 only where no settlement has been reached by the Parties under Section 1.

In each case, it is necessary that negotiations between the Parties be pursued.

156. A/NZ may claim that negotiations have been exhausted without success; but any such claim is contradicted by their own Statements of Claim. Paragraph 38 of the

Statements refer to “Japan’s last minute offer to arbitrate.” That is a characterization of Japan’s conduct that can be made only with the benefit of hindsight. Japan did not know that A/NZ would respond to its first indication of willingness to accept a role for arbitration in the settlement of the dispute by announcing that they had unilaterally initiated action under the UNCLOS procedures. The diplomatic exchanges might more accurately be said to reveal the A/NZ’s rejection of Japan’s offer to submit to arbitration, without any attempt whatever to explore the novel possibility that the offer presented for a settlement of the dispute. It cannot be said that the preconditions for the application of the Part XV procedures have been met.

D There Is No Genuine Dispute under UNCLOS

157. It has been demonstrated that the allegations made by A/NZ all relate to Japan’s conduct under the CCSBT, and that this dispute arises from the CCSBT and not from the UNCLOS. That is so as a matter of fact.

158. It has also been demonstrated that the role of the CCSBT as lex specialis precludes reliance upon the UNCLOS. The situation is not merely one in which the

CCSBT dispute settlement provisions exclude the operation of Part XV of UNCLOS.

It is one in which the substantive provisions of the CCSBT override the substantive provisions of UNCLOS, including, as much as any others, those invoked by A/NZ as the basis for their complaint in the present case. As was stated by Australia in its

Opening Statement in the December 1998 negotiations under Article 16(1) of the

CCSBT, “it would be prepared to consider a scientifically valid EFP which is agreed by all parties and which is otherwise consistent with the 1993 Convention.”112 This is a clear acknowledgement not merely of the importance of the CCSBT but of its dominance and control.

159. Let it be imagined for a moment that every substantive obligation of UNCLOS pointed to by A/NZ had been satisfied by the conduct of the Parties. Unless that conduct meets the requirements of the CCSBT it would be insufficient to validate the

EFP between the Parties to the CCSBT. The CCSBT is the sole controlling instrument and the only determinant of the legality of conduct addressed to SBT.

112 Record of Discussions: Negotiations Under Article 16(1) of the Convention for the Conservation of Southern Bluefin Tuna in Relation to the Dispute Notified Among the Parties Relating to Japan’s Experimental Fishing Program, Tokyo, 20-23 December 1998. (Dossier 9.7). Emphasis supplied. 77

160. Both as a matter of fact, and as a matter of law, no dispute arising under the

UNCLOS can be found in A/NZ’s Statement of Claim. Nonetheless, on a limited basis appropriate only to the determination of the Tribunal’s jurisdiction, it may be helpful to this Tribunal to examine the Statement of Claim in more detail.

161. A/NZ allege breaches of UNCLOS Articles 64 and 116-119.113 Those articles impose on States general duties to cooperate with each other in relation to the conservation, utilization and management of highly migratory and high seas fish stocks

(Articles 64, 118), and to impose upon their fishing vessels on the high seas measures necessary for the conservation of living resources (Articles 117, 119), and provide that the freedom of fishing on the high seas is subject to these and other treaty obligations of States (Article 116).

162. The references to these Articles in the Statement of Claim are so general and unparticularized that Japan would be unable to offer any detailed response to the allegations that it has violated them, even if they were properly a matter for decision by this or any other tribunal. The allegations amount to no more than a bald assertion that

Japan, by putting forward in CCSBT meetings proposals concerning the TAC and EFP based upon its own scientific analysis of the data, and by instituting EFPs in 1998 and

1999, has deliberately impeded the work of the CCSBT.114 The extraordinary assertion in paragraph 58 of the Statement of Claim that Japan was “ignoring credible scientific evidence” presented by A/NZ can hardly be taken literally. It is a wholly unsubstantiated claim about the way in which Japan assessed the scientific data—a matter that in any event lies outside the knowledge of Australia and New Zealand.

113 Statement of Claim, paras. 53-63. 114 Statement of Claim, paras. 47-48. 78

Presumably it is rather a complaint that Japan was wrong to draw from the data the inferences that it did.

163. Two characteristics of the A/NZ allegations are striking. First, as has been noted, they actually all relate to the CCSBT. A/NZ have not relied upon UNCLOS provisions on their own to institute, as they could have, proceedings against other countries like the ROK or Indonesia, despite the fact that these countries both fish for

SBT and are parties to UNCLOS. Nor, even if A/NZ’s pessimistic stock assessments and criticisms of the design of the 1999 EFP were credited, could it plausibly be denied that the perennial fishing activities of such countries threaten the SBT stock every bit as seriously as does Japan’s limited EFP. Indonesia, for example, catches thousands of tons of SBT on the species’ sole known spawning ground; the ROK has dramatically escalated its annual catch of SBT by several hundred percent even as it has made ever- increasing demands upon Australia, Japan, and New Zealand for assurances of the quota it would be allocated if it acceded to the CCSBT. The significance of the fact that the allegations against Japan all focus on the CCSBT has been noted and developed above.

164. The second characteristic is that the allegations all come down to the complaint that Japan, by pressing its own views in the CCSBT, was quite deliberately trying to impede the work of the CCSBT; as such they focus not on Japan’s actions but on its alleged motives. A/NZ is obliged to adopt this approach because the Statements of

Claim and the undisputed facts in this dispute offer abundant evidence of Japan’s co- operation with A/NZ. Japan negotiated and became a party to the CCSBT and has participated vigorously in its work. Indeed, it is perverse that the Applicants have singled out for attack the one other State fishing for SBT that has cooperated with

them in this way.115 It is, moreover, an elementary proposition of law that neither

Japan nor the other Parties to the CCSBT could be regarded as being in breach of the duty to cooperate simply by reason of the fact that they have not yet reached agreement as a result of their negotiations.116

165. The allegation that Japan did not take the necessary conservation measures can only be sustained if coupled with a claim that Japan acted in bad faith. Article 117 makes it clear that States may discharge their duty thereunder by unilaterally imposing conservation measures upon their fishing vessels. Japan has done so. UNCLOS makes no provision for the “overruling” of decisions made in good faith by States

Parties as to precisely what conservation measures are “necessary”; nor does the

CCSBT. Nor is any such power given to tribunals operating under Part XV of

UNCLOS.117 Generally, international tribunals respect national determinations in such matters unless they can be shown to be irrational, patently disproportionate, or otherwise fundamentally flawed.118 A/NZ in effect must be implying119 that Japan

115 In this regard it should be noted that since 1990 catches of southern bluefin tuna by the three States parties to the CCSBT have been stable, at around 11,000 mt, but catches by non-member States have increased from about 100 tons in the mid 1980s to about 4,500 mt in 1996-97. Jean-Jacques Maguire, Patrick Sullivan, Bob Mohn and S. Tanaka, Southern Bluefin Tuna: Panel Statement on Experimental Fishing Programme, (4 August 1999), p. 4. See Annex 1 to Japan’s Response to Request for Provisional Measures. (Dossier 9.1). 116 The International Court and other international arbitral tribunals have repeatedly made clear that an obligation to negotiate does not imply an obligation to reach agreement North Sea Continental Shelf cases, ICJ Reports 1969, 3 at p. 49, citing the case of Railway Traffic between Lithuania and Poland, PCIJ Series A/B, No. 42, 1931, at p. 116; Government of Kuwait v. Aminoil, 66 ILR 518 at 565. A fortiori, the obligation to cooperate cannot imply a duty to reach an agreement. 117 Indeed, it is a basic feature of UNCLOS to exclude from its compulsory dispute settlement system the possibility of overturning national determinations concerning conservation measures. See, in particular, Article 297(3). 118 See the Appellate Body of the WTO in the Beef Hormones case, para. 115: “The standard of review appropriately applicable in proceedings (sc., under the Agreement on the Application of Sanitary and Phytosanitary Measures), of course, must reflect the balance established in that Agreement between the jurisdictional competences conceded by the Members to the WTO and the jurisdictional competences retained by the Members for themselves. To adopt a standard of review not clearly rooted in the text of the SPS Agreement itself, may well amount to changing that finely drawn balance; and neither a panel nor the Appellate Body is authorized to do that.” EC Measures concerning Meat and Meat Products (Hormones), WTO doc. WT/DS26/AB/R, 16 January 1998. The 80

acted in bad faith by relying on its own evidence and ignoring evidence presented by

the Applicants when it fixed catch limits and by the resultant discrimination in favor of

its nationals. Yet no evidence, nor even any explanation, of why A/NZ believe Japan

to have “ignored” their evidence, deliberately tried to impede the CCSBT, and

discriminated in favor of its nationals is offered. The Statement of Claim discloses no

triable case against Japan. In any event, the allegations of bad faith conduct attack

Japan’s actions at Commission proceedings and with respect to Japan’s obligations

under the CCSBT, thus again demonstrating that this is not a dispute under UNCLOS.

166. The complaint concerning the conduct of the 1998 and 1999 EFPs by Japan

suffers the same defect. Here too A/NZ do not argue that Japan was not entitled to

engage in fishing for scientific purposes on the high seas, but rather complain that the

EFPs violated Japan’s general duties to conserve high seas and migratory fish and to

cooperate in their management and utilization. There is no suggestion that a State

engaging in experimental—or, indeed, any other—fishing on the high seas per se

violates international law. The alleged violation depends, as do all the A/NZ’s

complaints, upon the allegation that Japan was acting in bad faith.

167. The claim that Japan has violated Article 116 is not even prima facie sustainable.

The article recognizes and codifies a right—the freedom to fish on the high seas. The

article states that the right of fishing is “subject to” other treaty obligations.120 That

same thinking underlies the “margin of discretion” principle in the European Court of Human Rights: Handyside v. U.K., E.Ct.H.R. Ser A/24. 1976, p. 22; Certain aspects of the laws and the use of languages in education in Belgium, E.Ct.H.R., Ser A/6, 1968); and the use of the “reasonableness” criterion elsewhere. See, for example, the North Sea Continental Shelf cases and “reasonable proportionality” ICJ Reports 1969, 3, para. 98; and the Air Services Agreement case, France v. U.S. (1978) 18 RIAA 416, exclusion of national determinations. 119 See Statement of Claim, para. 58. 120 Article 116 also makes the freedom subject to compliance with, inter alia, UNCLOS Articles 64 and 117-119. It has already been shown that there is no evidence of any real dispute concerning 81

does not make the right to fish conditional upon compliance with other treaty obligations: it indicates that States cannot escape from other treaty commitments by referring to their rights under Article 116. The intention was plainly to refer only to obligations under “other treaties” that are applicable on the high seas. But many treaties are applicable there: the EC treaty, the International Covenant on Civil and

Political Rights, ILO conventions, and the European Convention on Human Rights, for instance, all apply to fishing vessels on the high seas. It is absurd to suggest that an

UNCLOS Part XV tribunal could be given the jurisdiction to rule upon a dispute based upon an alleged breach of one of those treaties by the device of presenting the issue as a question of the interpretation of Article 116. Similarly, the suggestion that a dispute concerning the operation of the CCSBT somehow infects Japan’s exercise of its right under Article 116 of UNCLOS and thereby creates a dispute under UNCLOS is not sustainable. Again, no triable complaint against Japan is disclosed by the Statement of

Claim.

168. Only by dismissing Japan’s actions as tainted by bad faith can A/NZ attempt to make out any case against Japan in terms of the UNCLOS provisions, because it is patently obvious that Japan’s conduct has conformed to the express UNCLOS obligations cited in the Statement of Claim. But there is no indication whatever of the evidence that leads A/NZ to suppose Japan’s actions were “calculated to defeat the object and purpose of the 1993 Convention”121 or how that allegation would make out a violation of UNCLOS. Indeed, the Statement of Claim does not even seek to list

UNCLOS Article 300, which sets out the duty of good faith, among the Articles that it asks the Tribunal to declare that Japan has violated.

Japan’s compliance with its obligations under those Articles.

169. In short, the Statement of Claim puts forward no evidence which could support a

claim that Japan has acted in violation of its duties under UNCLOS. Japan fully

accepts its duties under that Convention to cooperate in the conservation and

management of SBT and to impose upon Japanese fishing vessels measures necessary

for the conservation of SBT. There is no real dispute under UNCLOS. References to

that Convention are artificial devices intended only to persuade the ITLOS and this

Tribunal that they have jurisdiction in this dispute.

XIII THIS TRIBUNAL HAS NO JURISDICTION OVER DISPUTES THAT CONCERN ONLY CUSTOMARY INTERNATIONAL LAW WITHOUT REFERENCE TO UNCLOS

170. The relief sought by A/NZ in paragraph 69(1)(e) of the Statement of Claim refers

to the precautionary principle, separately from UNCLOS. The jurisdiction of the

Tribunal, however, is limited to disputes “concerning the interpretation or application

of this Convention (sc. UNCLOS)”.122 The Tribunal has no jurisdiction over disputes

which arise solely under customary international law.

XIV THE MATERIAL ISSUE OF THE DISPUTE DOES NOT CONCERN LEGAL RIGHTS OR DUTIES UNDER UNCLOS OR EVEN UNDER THE CCSBT—THIS TRIBUNAL CANNOT APPROPRIATELY BE SUBSTITUTED FOR THE CCSBT MECHANISMS

171. The preceding paragraphs have demonstrated that the differences between Japan and A/NZ do not concern rights or obligations under UNCLOS. The matters detailed in the Statement of Claim do not even concern legal rights or duties under the

CCSBT. They raise questions of scientific judgement and opinions regarding the likely

121 Statement of Claim, para. 60. 122 UNCLOS, Article 288(1). See G. Jaenicke, “Dispute Settlement under the Convention on the Law of the Sea”, ZaoRV, Vol. 43 (1983), p. 822; cf., para. 39 of the judgment of the ICJ in the Application of the Genocide Convention Case, Preliminary Objections, ICJ Reports 1996 (II), p.620. 83

validity of scientific hypotheses and methodologies that have been advanced in the course of discussions in the CCSBT.

172. The Statements of Claim make several allegations that disclose disputes over scientific hypotheses. First, there is the allegation in Paragraph 69(1)(a) that Japan has failed to adopt “necessary conservation measures” for its nationals fishing on the high seas so as to maintain or restore the southern bluefin tuna stock to levels which can produce the maximum sustainable yield. As has been noted, this is not a difference of opinion concerning a matter of legal obligation: it is a scientific controversy that divides even experts, a difference of opinion concerning a matter of scientific inference and prediction and measures that lie within the margin of appreciation allowed to

States. It is notable that the 1995 Straddling Stocks Agreement (Article 29) makes special provision for the reference of disputes “of a technical nature” to ad hoc expert panels, rather than to “legal” tribunals.

173. Secondly, there is the demand in paragraph 69(2) of the Statements of Claim that

Japanese nationals be limited to the “previous national allocations” agreed within the

Commission. This, too, is a claim which does not concern the legal rights or duties of the Parties under UNCLOS or CCSBT. There is no legal basis upon which it can rationally be claimed that Japan should now adhere to a “previous national allocation” for a fishing season that has long since been completed.

174. The most recent “national allocation” of Japan made in accordance with CCSBT procedures was set for the 1997 fishing season. The allocation123 was made within the framework of the CCSBT on the basis of scientific data related to southern bluefin

123 The 1997 and preceding years’ allocations were a compromise by Japan alone because of

tuna stocks when the allocation was discussed. Those data are no longer current.

Without proper scientific analysis of current data there is no basis for determining whether or not the 1997 allocation remains an appropriate allocation. It is all the more difficult to say how long the 1997 allocation could remain appropriate even if it were to be so now, in the future. The question of what a “proper” scientific analysis might be is also an acutely controversial question which, as has been explained, lies close to the heart of this dispute; and it is one which the parties to the CCSBT were and are now seeking to answer within the CCSBT framework.

175. Even if there were agreement upon the necessary scientific data and its interpretation, that would not resolve the matter. The Tribunal is being asked to substitute itself for the Commission under the CCSBT and to determine and impose a catch allocation upon Japan. In asking that, the Applicants are not asserting any legal right: they are seeking a remedy which far exceeds any entitlement they have under

CCSBT (or, indeed, UNCLOS). Under neither treaty is it possible for any two of the

Parties to the CCSBT to impose catch limits upon the third without its consent. The

CCSBT procedures, agreed by and binding upon the Parties, require unanimity of the parties in order to set quotas. Setting TAC is not a matter for judicial determination.

176. The CCSBT does not function in the same way as conventions such as the 1972

Convention for the Conservation of Antarctic Seals [11 ILM 251 (1972)]. That

Convention provides that where the Scientific Committee on Antarctic Research gives a notification that permissible catch limits are likely to be exceeded, Contracting States must prevent their nationals from killing or capturing seals until the Contracting Parties decide otherwise (Article 5(5)). In that Convention the scientific determination that

Australian threats to exclude Japanese fishing vessels from its EEZ and its ports. 85

the permissible catch is likely to be exceeded operates to suspend the right to catch.

There is no such provision in the CCSBT. Limitations on high seas fishing for southern bluefin tuna can be imposed, under the CCSBT, only by the unanimous agreement of the States parties.

177. Moreover, the distribution of the national quota allocation is a matter decided by political negotiation. The figure of 6,065 mt, the quota distributed to Japan for the fishing years from 1994 through 1997, was the outcome of allocating the 11,750 mt

TAC for the 1994 to 1997 fishing seasons among Japan, Australia and New Zealand.

The figure itself does not reflect any legal principle, but is the result of a political negotiating process within the CCSBT Commission. The question of whether 6,065 mt is right or wrong is not a question for this or any other court or tribunal.

178. There is a further consideration bearing upon the nature of the demands set out in the Statements of Claim. A/NZ present the dispute as an urgent matter, necessary to safeguard the southern bluefin tuna stock. Nonetheless, the Parties to the present proceedings include only three of the major countries that fish on the high seas for southern bluefin tuna. If this Tribunal were to make any Award limiting Japan’s right to fish, it would have to act on the basis of some supposition concerning the rights and the behavior of countries that are fishing for southern bluefin tuna on the high seas (as is their legal right subject to UNCLOS) but that are not parties to the present proceedings. That was explicitly recognized in the ITLOS Order, paragraph 90.1(f) of which states that the States parties to the present dispute “should make further efforts to reach agreement with other States and fishing entities engaged in fishing for southern bluefin tuna, with a view to ensuring conservation and promoting the

objective of optimum utilization of the stock.” But this Tribunal is not entitled to act on the basis of supposition.

179. It is true that the CCSBT Commission has itself made decisions on quotas despite its inability to bind such third countries. It may also be the case that A/NZ consider that by basing their claim on UNCLOS an award of this Tribunal might bind not only Japan but in some way bind all other UNCLOS Parties (which, presumably, have the same legal duties under UNCLOS as does Japan) which fish for southern bluefin tuna. But even so there are crucial differences between the nature of the

CCSBT Commission and that of the Tribunal that render it wholly impractical for the

Tribunal to play the institutional role that A/NZ would have it play. The CCSBT is a permanent institution, monitoring developments with the aid of many scientific advisors and with mechanisms for the discussion of scientific controversies. The

CCSBT, moreover, can and does discuss matters with non-party countries engaged in southern bluefin tuna fishing (accession of the ROK is formally on the table of negotiations among the Parties of CCSBT). It can and does take into account fishing for SBT within national EEZs, which fall outside the scope of the present claim. And if the CCSBT errs, it can act swiftly to correct its error. Yet A/NZ are seeking to persuade the Tribunal to intervene in this dispute and to regulate tuna fishing where the

CCSBT Commission itself has found it extremely difficult to do so. A/NZ are not seeking to uphold legal rights: they are asking this Tribunal to exercise an administrative and distributive competence, a political task that lies outside its judicial function.

180. A/NZ invite the Arbitral Tribunal to make a radical claim to extend its competence beyond legal questions upon which the Parties are in fact not in dispute, to

participate in, and indeed decide, the scientific and political issues over which the

Parties are at present divided, and to impose a solution upon the Parties. In inviting it to assert a power to allocate and impose quotas on high seas fishing, regardless of the provisions of the CCSBT and the UNCLOS, and regardless of the reasoned dissent of

Japan, A/NZ seek to persuade this Tribunal to exercise a power that not even an international fisheries commission possesses or has ever possessed. It is a function inappropriate to a judicial tribunal.124

181. Japan has consistently maintained that the core of this dispute is a disagreement over scientific, not legal, questions, arising under the CCSBT. Japan has consistently emphasized the need to involve scientists and technical experts in the dispute settlement process, and it remains ready and willing to negotiate a settlement to the present dispute on that basis. Furthermore, Japan is making strenuous efforts at the

CCSBT Commission meetings, and is taking firm action to impose the necessary conservation measures on its own fishing vessels, in order to make the CCSBT more effective. It is committed to the success of the CCSBT, and especially to the inclusion of other States and entities fishing for SBT within the CCSBT system, in order to attain a comprehensive management framework for the conservation and optimum utilization of SBT.

124 As the ICJ has said: “There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore. There may thus be an incompatibility between the desires of an applicant, or, indeed, of both parties to a case, on the one hand, and on the other hand the duty of the Court to maintain its judicial character.” Northern Cameroons Case, Preliminary Objections, ICJ Reports 1963, pp. 33-34. Cf., Haya de la Torre Case, ICJ Reports 1951, p. 79 ; Fisheries Jurisdiction Case (United Kingdom v. Iceland), Interim Measures, ICJ Reports 1973, p. 303, para. 7; Fisheries Jurisdiction Case (United Kingdom v. Iceland), Merits, ICJ Reports 1974, pp. 31•32, para. 73. 88

SUBMISSION

182. Having regard to all the foregoing, the Government of Japan submits that this

Tribunal should adjudge and declare that it has no jurisdiction over the claims made by the Applicants in this case.

11 February 2000

Respectfully submitted,

Shotaro Yachi Isao Nakasu Agent of the Government of Japan Director-General Director-General Fisheries Agency Treaties Bureau Ministry of Agriculture, Forestry Ministry of Foreign Affairs and Fisheries

Ichiro Komatsu Co-Agent of the Government of Japan Deputy Director-General Treaties Bureau Ministry of Foreign Affairs

List of Annexes

1. Convention for the Conservation of Southern Bluefin Tuna (CCSBT)

2. Sketch map of area of SBT fishing

3. Drafting History of CCSBT, Article 16

3.1 First Trilateral Working Group – New Zealand draft, 7 April 1988

3.2 First Trilateral Working Group – Australia draft (undated)

3.3 Second Trilateral Working Group – consolidated working text, 26 August 1988

3.4 Third Trilateral Working Group – Japanese draft

3.5 Japanese draft, 30 January 1992

3.6 Australian input, 1992

3.7 Fifth Trilateral Working Group – Japanese draft, 10 February 1992

3.8 Fifth Trilateral Working Group – Consolidated working text, 13 February 1992

3.9 Sixth Trilateral Working Group – Australian comments, August 1992

3.10 Sixth Trilateral Working Group – New Zealand comments, August 1992

3.11 Sixth Trilateral Working Group, 14 August 1992

Diplomatic Correspondence and Other Governmental Statements

4. Australian Resources and Energy Minister letter to Japanese Minister of Agriculture, Forestry and Fisheries 25 February 1998

5. Australia Note to Japan, 27 February 1998

6. Japanese Minister of Agriculture, Forestry and Fisheries reply to Australian Minister’s letter 30 March 1998

7. Talking Points for the Meeting on 8 July 1998 Between The Minister for Resources and Energy and the Japanese Ambassador to Australia on Japan’s Announcement to Undertake An Experimental Fishing Program from 10 July 1998

8. New Zealand Aide Memoire, 8 July 1998

9. New Zealand Media Release of Acting Minister of Foreign Affairs and Trade, 8 July 1998

10. Australian Media Release of Minister for Resources and Energy, 8 July 1998

11. New Zealand Media Release of Acting Minister of Foreign Affairs and the Minister of Fisheries, 13 July 1998

12. Japan Letter to New Zealand, 13 July 1998

13. New Zealand Note to Japan, 14 July 1998

14. New Zealand Letter to Japan, 23 July 1998

15. Australia Note to Japan, 31 August 1998

16. New Zealand Note to Japan, 31 August 1998

17. New Zealand Media Release of Acting Minister of Foreign Affairs and Trade, 31 August 1998

18. Australia Media Release of Minister for Resources and Energy, 1 September 1998

19. Japan Note Verbale to Australia, 9 September 1998

20. Japan Note to New Zealand, 9 September 1998

21. New Zealand Note to Japan, 10 September 1998

22. Australia Note to Japan, 11 September 1998

23. New Zealand Aide Memoire, 1 October 1998

24. Report of the Third Session of IOTC: Appendix J – Resolution on Southern Bluefin Tuna, December 1998

25. New Zealand Aide Memoire and Summary of Key Issues relating to an Experimental Fishing Programme, 28 May 1999

26. Australia Note to Japan, 31 May 1999

27. Japan Note Verbale to Australia, 1 June 1999

28. Japan Note to New Zealand, 4 June 1999

29. Australia Note to Japan, 7 June 1999

30. New Zealand Note to Japan, 8 June 1999

31. Japan Note Verbale to Australia, 15 June 1999

32. Japan Note to New Zealand, 16 June 1999

33. Australia Note to Japan, 23 June 1999

34. Japan Note Verbale to Australia, 23 June 1999

35. New Zealand Note to Japan, 24 June 1999

36. Japan Note to New Zealand, 24 June 1999

37. Australia Note to Japan, 30 June 1999

38. New Zealand Note to Japan, 30 June 1999

39. Japan Note Verbale to Australia, 2 July 1999

40. Japan Note to New Zealand, 2 July 1999

41. Japan Note Verbale to Australia, 9 July 1999

42. Japan Note to New Zealand, 9 July 1999

43. Japan Note Verbale to Australia, 14 July 1999

44. Japan Note to New Zealand, 14 July 1999

45. Australian Note to Japan, 15 July 1999

46. New Zealand Note to Japan, 15 July 1999

Miscellaneous

47. Table summarizing dispute resolution provisions of treaties relating to subject matters covered by UNCLOS

48. Paper given by Australian Embassy to Japanese Ministry of Foreign Affairs, 18 May 1999